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Guest Host: Christina Bellantoni
The arrest of Indian diplomat Devyani Khobragade in New York triggered a diplomatic rift between the United States and India. American officials arrested the diplomat after finding she had been paying her domestic help close to $3 per hour. The case has caused an uproar among Indian government officials because they say it violates terms of diplomatic immunity in international law. We explore the legal foundation of diplomatic immunity and understand why it can open the door for abuse.
- John Bellinger III Partner and head of the international law practice, Arnold & Porter in Washington, DC; adjunct senior fellow in international and national security law, Council on Foreign Relations; formerly legal adviser (General Counsel), Department of State (2005-2009).
- Steven Watt Senior Staff Attorney, ACLU Human Rights Program
- Guy Taylor Reporter, Washington Times
MS. CHRISTINA BELLANTONIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. I'm Christina Bellantoni, incoming Editor In Chief of "Roll Call," sitting in for Kojo. On one end, there's a prestigious diplomat. On the other, a domestic worker. And in between, a breakdown in diplomatic relations between two long time allies, the United States and India. It all began nearly two weeks ago when American officials arrested an Indian diplomat in New York after finding she was paying her domestic help close to three dollars an hour.
MS. CHRISTINA BELLANTONIOnce she was in law enforcement's custody, though, she claims she was handled disrespectfully. Strip searched and put in a cell with drug addicts. The case is revealing a sharp cultural divide between the United States and India, as well as raising questions about the privileges diplomats enjoy when working abroad. Here to discuss with me in studio is John Bellinger III. He is a Partner and Head of the International Law Practice at Arnold and Porter in Washington D.C., and a Senior Fellow at the Council on Foreign Relations.
MS. CHRISTINA BELLANTONIHe also was the legal advisor for the Department of State between 2005 and 2009 under Condoleeza Rice. Thanks for being here.
MR. JOHN BELLINGER IIINice to be here.
BELLANTONIAnd joining us on the phone is Steven Watt. He is a Senior Staff Attorney for the Human Rights Program and the American Civil Liberties Union joining us from New York. Hi, Steven.
MR. STEVEN WATTHi. Good afternoon.
BELLANTONIAnd finally, last but not least, is Guy Taylor. He is a State Department Correspondent for the Washington Times. Also joining us on the phone, and I have to say, Guy is a former colleague of mine, one of the best reporters out there, so you should be following him. And glad to have you with us, Guy. Hello.
MR. GUY TAYLORHi, Christina. How are you?
BELLANTONIGreat. Thanks. So, I'm actually gonna start with you, Guy. Just to walk us through. I did a little bit in the intro there, but what exactly happened here? How did this diplomat, Devyani Khobragade, what was she doing? What was she arrested for and what's going to happen now?
WATTRight. Clearly, there actually is a little bit of history here between the diplomat's family and her maid. The maid's daughter had written several times to the US Embassy, over the last year, complaining about her mother's situation in New York. And it raises the question of, really, how much, how long this case has kind of been bubbling beneath the surface. And what's so interesting, as you pointed out in your intro a minute ago, is how the case has exposed this kind of huge cultural and economic difference between India and the United States.
TAYLORBecause US federal prosecutors have charged, now, this high level Indian diplomat, and she's in this kind of limbo here, where she's pleaded not guilty, basically with mistreating her servant. And I think what's really important, as we get into it, and we get into the legals here, is the fact, the way that, the idea that an Indian diplomat would be paying her servant, so to speak, or that any wealthy or well to do Indian could think that it was acceptable to pay a servant so little money is kind of unbelievable, I think, to most Americans.
TAYLORIt's sort of outside the box of how many of us think about issues like servitude or domestic help. Whereas for India's elite, or for India's upper classes, the concept of servants and how they are treated and what rights that they have is fairly commonplace and it's kind of set in stone. In other words, it's not viewed, in most of Indian society, as unacceptable to pay a servant as little as this woman in New York was being paid. So, I think, to get a deeper grasp here of what's at play, we have to ask this kind of very basic question.
TAYLORWhy has there not been more of an outcry from within Indian society against the mistreatment of this Indian diplomat's maid? For instance, why haven't other poorly paid servants across India risen up and spoken out? And instead, what we have actually seen is a really loud outcry from elite political operatives, in India, against the United States. And we can be sure that this question of why there hasn't actually been -- there haven't been more voices of servants in India speaking up is something that the American foreign policy establishment is probably struggling to understand right now.
TAYLORDespite what John Kerry has said in recent days, where he's tried to sort of paper over or downplay the idea that this is a serious diplomatic row, or there's a potential for one with New Delhi. I think the American foreign policy establishment, I.e. the State Department, is pretty uncomfortable about the whole issue of indentured servitude and basic rights for poor people in India. And, go ahead.
BELLANTONIWe're gonna get to all of that. And so, this woman, she was the Consul General, and her name again, is Devyani Khobragade. And John Bellinger, here in studio with me, she's being charged with Visa fraud. That can carry a sentence of up to 10 years. She's going to contest this on the grounds of diplomatic immunity. But what kind of protections do diplomats actually have and, sort of, where do we get this tension that Guy alluded to a moment ago?
BELLINGERRight, Christina. Thanks, so let me separate my comments between whether I thought this was actually a good prosecution to bring and whether she was treated appropriately, which I think is more of the outrage, and the international law. And excuse my voice. I'm a little raspy this morning. Under international law, a couple of important treaties that protect diplomats around the world, to which almost all countries are party. There are two principle treaties.
BELLINGERThe Vienna Convention on Diplomatic Relations, which protects foreign government officials in the United States who are representing their governments to our government. Diplomats. They're mostly here in Washington. They have absolute immunity from criminal prosecution or civil suits. And they also have something called personal inviolability. Their person can't be touched. They can't be arrested. They can't be detained. So, what we would call regular diplomats have absolute immunity, both foreign diplomats here and, importantly, our diplomats in other countries. And that's the important point.
BELLINGERIn this case, though, Miss Khobragade had a lesser form of immunity. She was Consoler Official. She was representing the Indian government, but only with respect to the interests of Indians in the United States and Indian businesses. So, she was an Indian official, but she was performing different kinds of functions, and so she's protected under a different treaty called the Vienna Convention on Consoler Relations. And Consoler officials have a lesser form of immunity. They only have immunity for their official acts, so they're only protected when they're doing their jobs.
BELLINGERNot when they're doing things that are outside their jobs. And they have a lesser form of personal inviolability. They actually don't have absolute inviolability. They can be arrested and even detained for grave crimes, which the State Department, for 20 years, has interpreted to mean a felony, an offense that is punishable for more than a year. So, in this case, Miss Khobragade was charged by prosecutors in New York with a grave crime. Visa fraud. Even though it was essentially a paper fraud, and then she was arrested and detained and under standard martial procedures in New York, was apparently strip searched, which was extremely offensive to her.
MR. NICK PYENSONAnd, particularly, to her sensibilities as an Indian woman, and to Indians generally. So, I was formerly the top lawyer for the State Department, and I can tell you, she was, under international law, this was appropriate. But, whether this was a wise thing to do, in this particular case, where we are concerned about the treatment of foreign domestic workers by diplomats, it may have been better to save this kind of case for someone who had really been beating their domestic worker. There didn't seem to be a particular need to arrest and detain her, and then ultimately subject her to a strip search.
IIIAnd we can talk a little bit more about how that ultimately happened.
BELLANTONIAbsolutely. And the reaction has been very intense. And it's interesting to point out this woman who worked for her is claiming that she forced her to falsify a document, saying that she had signed one thing that offered her a certain wage and then actually signed a different document that was a much, much lower wage. And that's one of the reasons where these charges come about. So, Steven Watt again, joining us on the phone. He's a Senior Staff Attorney for the Human Rights Program at the American Civil Liberties Union.
BELLANTONIAs this case seems to suggest, diplomats may abuse their privileges. So, what do we know about these abuses, to this point. Is this a unique case or do you hear stories like this surfacing within the diplomatic community?
WATTThis case is, by no means, unique. I think what is unique is the furor that it's created and the vitriol on the part of the Indian press and folks over there. But this isn't the first time that the United States has sought a prosecution of high ranking foreign officials with some form of immunity. Since 2011, there has been four cases, of which I'm aware, one involving an Italian diplomat over in California, one in Kansas involving a Taiwanese Consoler, high ranking Consoler official who was actually arrested and detained for a period of time, like Miss Khobragade.
WATTAnd an official from (word?) here in New Jersey, an occasion which I was involved in and which involved a diplomat who had trafficked their domestic workers, Kuwaiti diplomats, who trafficked their workers from Kuwait into this country. And we filed civil proceedings in that case, and the FBI, following the filing of that case, actually initiated an investigation into the diplomats and sought a waiver of their immunity so that they could continue their investigation. That waver was not granted.
BELLINGERBut there have been, since 2003, there have been about 117 cases, in federal courts, under the Trafficking Victims Protection Act. And 21 of those have been against foreign officials with some form of immunity. Diplomat Consul officials are like forfeit. So, it's not an unusual case, by any stretch, and what the United States is doing here is not unusual. What is unusual is the diplomatic furor that accompanied it.
BELLANTONIAnd we're talking about diplomatic immunity and the propensity for abuse. I'm Christina Bellantoni, sitting in for Kojo Nnamdi, and I'm gonna turn again to Guy Taylor, who covers the State Department for The Washington Times. So, Guy, you've covered the State Department for a long time and here in D.C., there's a robust diplomatic community. So, D.C. courts are pretty familiar with these kinds of issues. In your time covering them, how have you seen these cases resolved?
TAYLORWell, first, there are a couple of different ways. I mean, you can look back 20 years. One of the most famous cases involved a Georgian diplomat who was out politicking in the Cleveland Park neighborhood, and became very inebriated, and then drove his car very fast down Connecticut Avenue and slammed into several other cars in DuPont Circle, resulting in the death of a young woman from Maryland. That was a case from the late 1990s. The way that it was resolved was a lot of arguing and back and forth where US federal authorities wanted to bring this Georgian diplomat to trial in the United States for involuntary manslaughter.
TAYLORAnd ultimately, he was brought to trial in the United States. And he was found guilty and then served some of his time of his -- I think it was roughly like a 10 year sentence. He here in the United States served, I think, and one of the other guests can probably correct me on this, but about four years here. And then he was released to serve a couple of more years in some kind of a detention in Georgia. And then he was ultimately released and I think he's out of politics and diplomacy, at this point.
TAYLORRight. And I think also there's -- it's something else that's kind of important to point out here. There are issues of breaking U.S. law if you're a foreign diplomat or someone who works in an embassy here in the United States. And then there are issues of politics which are always right on the tip of our tongues in Washington. And there's usually a reason. I mean, I think we have to -- we would be wise to ask ourselves -- and I was trying to get at this a little bit earlier -- is there a political motivation here for bringing this particular case -- for the U.S. to highlight a case like this by going after an Indian diplomat in U.S. courts?
TAYLORIt could be a way to sort of get the conversation going in the Indian media and the U.S. media about the whole injustice faced by servants in India. I think there's -- or at least floated out there and see if it picks up steam on its own. Does it trigger a kind of social movement? You know, maybe the way that -- let's think about the last year in India, the horrific violation of a young woman's rights by several young men -- sort of searching for words of how to describe this on the radio -- but on a public bus -- I think you guys are familiar with the case.
TAYLORThe woman's name was Nerbaya (sp?) And there was a massive -- this pro-women's rights movement that emerged out of this one case. So the landscape is really ripe for these types of movements for very taboo subjects in Indian society to become suddenly very public these days. And I think there's some evidence that U.S. officials in deciding to pursue this case may have had that reality in mind a little bit.
BELLANTONIJohn Bellinger is making faces here in the studio. Go ahead and respond to that and then we're going to take a quick break.
BELLINGERI will do that. Guy, I think you're -- unless you know something I don't, which is what you get paid to do -- I'd be very surprised to...
BELLANTONISorry, we're going to play that for you in a moment. Go right ahead.
BELLINGERI'd be very surprised if U.S. officials were trying to send any message to the Indians in this regard. This is playing with fire to try to prosecute foreign government officials in order to stir up a international dialogue. Because we have much more to lose than to gain. Yes, we are very concerned about foreign government officials who abuse their privileges. And we do need to do something about it. We can't look the other way.
BELLINGERBut these treaties are there primarily to protect American diplomats and consul officials around the world. So if we play fast and loose with the rules, warm skirt them or try to conduct prosecutions to stir up international dialogues, we have much more to lose than to gain around the world.
BELLANTONIIt certainly has sparked a conversation. And it's a good jumping-off point for us to remind you you can weigh in. Tell us what your personal experiences have been with diplomatic immunity and your reaction to this very unusual case, 800-433-8850. Send a Tweet to @kojoshow, engage with us on our Facebook page or email firstname.lastname@example.org. I'm Christina Bellantoni sitting in for Kojo Nnamdi. And we will be back after just a short break. Stay tuned.
BELLANTONIWelcome back. I'm Christina Bellantoni, incoming editor and chief of Roll Call sitting in for Kojo Nnamdi. We're talking about an interesting case of diplomatic immunity and the propensity for abuse with John Bellinger III. He's partner and head of the international law practice at Arnold and Porter, former top lawyer for the Department of State under Condoleezza Rice between 2005 and 2009.
BELLANTONIOn the phone is Steven Watt from the American Civil Liberties Union and Guy Taylor who's a State Department correspondent for the Washington Times. And this diplomatic debate has sparked a debate on our airwaves. And via email you can send an email to email@example.com like Alicia did, telling us that, "When I lived in Potomac, Md. 25 years ago, my neighbor was the Secretary General of an international organization for Latin America. The neighbor had withheld her maid's passport. The maid was in effect a prisoner in my neighbor's home and this went on for years."
BELLANTONIWe also got a post on our website kojoshow.org saying, "What the Indian diplomat did was illegal. There is no argument about that. The questions are about the recruitment and visa process. Going to the U.S. is seen by many Indians as a once-in-a-lifetime opportunity. So when the initial offer for a job was made in India, was there some sort of an under-the-table agreement? Did the maids use this as an opportunity to get to the United States and then in six months make a case for (unintelligible) get asylum. 30,000 rubies with food and lodging is a lot of money for most Indians. I'm not defending the diplomat but the U.S. visa system was abused by both the employer and employee."
BELLANTONIAnd we have a caller Perkosh from Rockville, Md. Thank you so much for joining us.
PERKOSHHi (unintelligible) . I just want to address the question why the maid's rights have not been taken care of by the Indians and the protests have been in favor of this diplomat, which is not really true? Three have been protests in the capital of India where people have come in support of this maid. Why we see the support totally in favor of the diplomat is for two reasons. One, the media is highlighting it. Media has got something new to portray. And the government -- the party which is running the government is having a tough time in the country at this time. And they wanted to make sure -- I mean, they lost major elections very badly.
PERKOSHSo now if they can raise this issue in the country and say things which are anti-America or show some kind of (unintelligible) they can really draw attention of a problem of their failures.
BELLANTONIThank you for thoughts. Steven Watt, a senior staff attorney for the human rights program at the American Civil Liberties Union, what are we hearing about this woman and what do you make of his comments?
WATTWell, what the U.S. is doing here is just following the letter of the law. It's following -- allegations have been made against Ms. Khobragade. And they are -- she's a consul official so certain procedures have been followed. And they're just following the law and doing what is required of the United States in circumstances such as this. And so this case is not unusual by any stretch. And what the United States is doing I think is laudable in the circumstances.
BELLANTONIAnd we talked a little bit about the case involving Kuwaiti officials earlier. What comparisons can you draw between past cases like that one and this one, sticking with you Steven for a moment?
WATTWell, let's talk about the Taiwanese one where the Taiwanese case that I mentioned in my introductory remarks. They are -- this is back in 2011 and the circumstances of the officials arrest in detention broadly similar to the situation here, Ms. Khobragade's case, there was allegations of visa fraud, underpayment of a domestic worker from the Philippines by a senior Taiwanese official in Kansas City.
WATTAnd she was arrested, detained. There was then eventually a fine paid and full restitution to the woman. And there was also a statement made at the time, which I think is important here. The Premier for Taiwan at the time, he mentioned this and stated that the recent attention of the Taiwanese official in the U.S. city of Kansas is irrelevant to Washington's policy on Taiwan. And the premier, according to the report, also urged the official concern to be honest with the authorities so that the ministry -- the Taiwanese ministry can get the full understanding of the situation.
WATTSo they were supportive of the arrest and detention. In fact, largely similar to the case we have here, and didn't see that it was -- it caused -- it was of any concern to Washington's policy on Taiwan.
BELLANTONIJohn Bellinger, the State Department can request that a country waive its diplomat's immunity. Talk a little bit about that. When does the State Department see that it's appropriate to do so and should they have done this before arresting Ms. Khobragade?
BELLINGERWell, of course in this case she didn't have immunity from criminal prosecution for a felony. So they didn't have to request immunity. In other cases, for example, diplomats protected by the Vienna Convention on Diplomatic Relations such as the Georgian diplomat who Guy mentioned, who had killed someone in an automobile accident, he had absolute criminal immunity. And there are other cases like that where the United States then pressures the foreign government to waive the immunity of the official.
BELLINGERA foreign government official can be prosecuted if the immunity is waived. It's not the immunity of the individual. It's the immunity of their government. And if the United States can convince the foreign government that there's been such outrage that the individual needs to be held accountable, one can sometimes get the foreign government to waive that immunity.
BELLINGERThe -- in this case again -- and I want to respond to something that Steve said -- I don't think there's any question that this woman Ms. Khobragade was doing something wrong. We do very sadly have foreign government officials, diplomats, consul officials who do abuse their workers, either just by not paying them enough, enslaving them and sadly often worse, physically abusing them, kicking them, throwing them down the stairs, slapping them, worse. And we're very concerned about that at the State Department.
BELLINGERThe question was in this particular case, should this woman, while she should have been investigated and potentially prosecuted, was it important to actually arrest and detain her for a crime that didn't involve physical abuse? Because if she were arrested and detained, of course she would have to go through the standard procedures of being strip searched, which is humiliating, particularly for a foreign diplomat, particularly for an Indian woman. And that's what has stirred up a good deal of the human cry in India.
BELLINGERAnd this brings me back to a very important point that's important for our listeners to understand, is while we do -- all of us need to be concerned about the conduct of foreign government officials in the United States, we need to recall that any time we remove the immunity or the viability of foreign government officials here, what sauce for the goose is sauce for the gander. We have far more diplomats in 150 countries or more around the world who, if we don't treat their diplomats well here, we may be risking politically-motivated prosecutions, physical abuse, detention of our diplomats around the world. So the state department has to balance these two factors.
BELLANTONIAnd in some of those places they certainly don't enjoy the same freedom of the press that we do or some -- a lot of the other freedoms. You can join our conversation. Give us a call at 1-800-433-8850, send a Tweet to @kojoshow or email firstname.lastname@example.org. Returning back to the politics that Guy Taylor, the State Department correspondent for the Washington Times, mentioned a moment ago, since the arrest and the outrage from the Indian government that we just discussed, you know, the president issued a very strong statement, the State Department has been doing this delegate dance.
BELLANTONIAnd we're going to listen for a moment to State Department spokeswoman Marie Harf who talked about Secretary Kerry's response to this incident. Here's Marie.
MS. MARIE HARFThe secretary understands very deeply the importance of enforcing our laws and protecting victims. And like all officials in positions of responsibility inside the U.S. government expects the laws will be followed by everyone here in our country. It's also particularly important, Secretary Kerry, that foreign diplomats serving in the United States are accorded respect and dignity just as we expect our own diplomats should receive overseas as well.
MS. MARIE HARFAs a father of two daughters about the same age, the secretary empathizes with the sensitivities we are hearing from India about the events that unfolded after the arrest. And in his conversation with National Security Advisor Mennen, he expressed his regret as well as his concern that we not allow this unfortunate public incident to hurt our close and vital relationship.
BELLANTONISo unfortunate public incident. The choice of language is important here, Guy Taylor. You've covered the State Department for a long time, obviously Secretary Kerry. You also covered him when he was a Senator. What do you take about this dance here and how the split is?
TAYLORI don't read too much into what Marie Harf says on anything like this. She basically just, in like oblique language, laid out the two sides and said, look we're going forward with this case on the one side. And then look on the other side we're really sorry about it. And we don't think it's that big of a deal. So let's try to get past it and work through it. And, you know, so it's almost as if we're sticking to our guns here.
TAYLORAnd John Kerry actually gave an even softer statement where he danced around it and really only just gave the second half of it, which she quoted, which was, you know, I feel really horrified about this. But I want to use that to address something that John Bellinger was saying a moment ago earlier in the show here about why it is that politicians and Indians -- and then we can go back to the caller from a few minutes ago as well -- why was there this outcry from the political leaders in India right now.
TAYLORAnd I think that indeed -- I don't necessarily agree with John that the outcry is specifically about a female high-level Indian government employee being mistreated. And I don't necessarily agree with the caller that this is Indian political leaders trying to completely create a distraction. I think more so, anyone in a position of leadership in India, when it comes to world news right now, understands that any story where it appears as if Indians have -- political officials and government officials have been sort of snubbed in the west has great legs in the Indian media.
TAYLORIt's another -- in this case very quickly gets jumped on as an example of the way that Indian officials are mistreated by western nations. It makes headlines whenever this happens because it plays on this concern in Indian politics that Indians are somehow seen in the same light as Pakistanis or somehow aligned with a lower-class nation. When in reality India is an extremely close partner to the United States and an equal in so many ways.
TAYLORAnd this is also not to mention this kind of under riding current in the Indian political geopolitical discussionary landscape -- if you could call it that -- this issue or this notion that India has somehow, during the Obama years, been given this kind of backburner status by Washington. Now, you know, with the so-called pivot to Asia, which has been focused very much on relations with and around China and not India, that there's this sense that complaining about the treatment of Indian diplomats in the United States is worthwhile. Because it exposes that in fact the United States is not -- doesn't think as highly of Indian diplomats.
TAYLORAnd that's why the story -- one of the big reasons, I think, that the story has such traction in the Indian media right now.
BELLINGERI think Guy's probably right about the motivation here, that the -- this is a convenient excuse to complain. I think the Indian officials and perhaps parts of Indian society really were outraged about the strip search of a woman diplomat. But at the same time the underlying motivations, why the Indians would make a big fuss about this may well be right.
BELLINGERThe Indians have been concerned about any slights on the international stage. The Indian government had an excellent, excellent relationship with the Bush Administration and they may be looking for slights in the Obama Administration here.
TAYLORWell, just to get the conversation going -- sorry to interrupt but just to get -- feel that they can get the attention of the administration.
BELLINGERI think that may be right. And unfortunately the impact for U.S. diplomats around the world in India and elsewhere though can be very dangerous. We've already seen that the Indians have removed the security protections of U.S. diplomats at certain facilities in India, have taken other steps to reduce their privileges in retaliation. And this is always the problem with these kinds of what we call privileges and immunities of diplomats, is it's all reciprocal.
BELLINGERSo, for example, we occasionally will see congress try to remove the immunities of foreign countries or their officials because they've gotten mad at a particular foreign country or its officials. Perhaps with good reason, but again if we remove our limit, the immunities or the privileges given to foreigners here, it opens the door to abuse of our officials around the world. And that's why the State Department has to walk this very fine line between both being concerned about bad acts by foreigners here, but not opening the door to abuse of our diplomats around the world.
BELLINGERBecause again, as I've said, we have far more to lose than to gain, given the number of countries in which we operate, and where, sadly, Americans are not always welcome.
BELLANTONIBridgette is joining us from Arlington, Va. Thanks very much for giving us a call, Bridgette.
BRIDGETTEHi. Thank you for taking my call. I have not seen anywhere in the news questions that I'm curious about which is more of the specifics of the background. Did this woman come -- well, I guess now I know she came from India on a contract. Was she living in our laws governing people who get room and board the same for pay, like what about au pairs that come to this country? What about health insurance, things like that? I don't feel like we really have a whole picture even of the financial situation.
BRIDGETTEAnd I was told not to ask this, but, you know, we took our agent in Pakistan and converted him to a diplomat so that he could be extracted and not charged with murder there a couple years ago.
BELLANTONIThanks for your call, Bridgette. Steven Watt, on the phone with us from the American Civil Liberties Union in New York you are senior staff attorney for the Human Rights Program. Can we talk a little bit more about the specifics of this situation?
WATTYeah. So under U.S. law, there's a Visa process by which diplomats and consular officials can bring in home helps to assist them in their official functions. There's two processes. It's an A3 Visa, and it's a G5 Visa for individuals such as Ms. Khobragade here to bring in her domestic worker. And as part of that process, and I'll talk about Ms. Khobragade's process as I understand it, is that there would have been a -- that the United States requires a Visa application to be made and certain undertakings to be given in that Visa application process by the diplomat or consular official in regards to their home help.
WATTAnd one of those requirements is that they pay them prevailing wages here in the United States and provide the individual with a written contract to that effect. So that's what should govern while they're here in the United States, and my understanding just from what I've read is, that application process went -- they went through this process but it wasn't adhered to. And that's where we arrive at. It's the violation of the U.S. law. That's the Visa fraud that is alleged in this case.
WATTSo there is a process, and the United States is involved in that because they ultimately issue the Visa, and they have got an interest in ensuring that the diplomat or consular official actually complies with the requirements of that Visa before it's issued.
BELLINGERSo for a decade or more, the U.S. government, particularly the State Department, but Justice Department and other agencies have been concerned about foreign diplomats bringing in their own household help, which they say they want from their own country, and then abusing them or enslaving them. As I say, sometimes it's just paying them a low wage, but it can often be worse. Five years ago today, in fact, coincidentally, President Bush signed new legislation, the Trafficking Victims Protection Act of 2008, which contained specific provisions to protect domestic workers of foreign diplomats.
BELLINGERAnd one of the protections was that there had to be a written contract between the diplomat and the household worker so that the terms of the employment are clear. And that's a particularly important protection. What Ms. Khobragade apparently did though was to sign one contract which paid the required minimum wage in New York, and then signed another secret contract which paid her only three dollars an hour, and that was in fact a violation of U.S. law, a Visa fraud, which was in fact a felony under U.S. law.
BELLANTONIWe will continue our conversation about diplomatic immunity and the propensity for abuse in just a moment after a short break.
BELLANTONIWelcome back to the show. I'm Christina Bellantoni sitting in for Kojo Nnamdi. And we are having a conversation about diplomatic immunity and the arrest of consular general from India with John Bellinger, who is a former top lawyer for the State Department currently with the international law practice at Arnold & Porter in Washington D.C., Steven Watt, a senior staff attorney for the Human Rights Program at the American Civil Liberties Union and Guy Taylor who covers that State Department for the Washington Times.
BELLANTONIAnd you can join our conversation. Send us a tweet to @kojoshow, email email@example.com, or call 1-800-433-8850. We have a tweet from Rasheck (sp?) who says, "I understand that Ms. Khobragade comes from a Dalit family, in parenthesis, known as untouchables in India, so her treatment is surprising. So we've had a lot of callers who are talking about sort of the distinguishing treatment and whether strip search is offensive to anyone or what the laws are.
BELLANTONISo John Bellinger, you're nodding a little bit here. What should -- what does this say?
BELLINGERWell, on the one hand, the U.S. Attorney's Office in New York issued an extremely defensive statement, remarkably defensive statement saying that she was treated just the way any other American would be treated, which is, I assume to be true if you are taken into custody by the Marshal's and arrested. They want to make sure, you know, they just can't decide that while one person might be a nice person, another person might not be a nice person.
BELLINGERSo they give you a pretty serious strip search, which frankly, you know, involves looking between your legs and so forth, and it's unpleasant for anyone, but I think probably particularly unpleasant for a woman. And for an Indian woman, I think particularly sensitive. This particular woman did come and apparently benefit from essentially affirmative action in India from originally having come from the untouchable class in India, people who literally could not been seen or enter villages or drink from the same water in India, and they have been upgraded over time.
BELLINGERHer father, and she apparently benefitted from affirmative action, but some in India have seen this as a particular slur against her which has performed the outrage by some in India, at the same time, as I've said, the U.S. Attorney's office here has said, look we really don't care whether she was a diplomat or not. We're going to treat her the same as anybody else.
BELLANTONISuzanne from Greenbelt, Md. has some thoughts on how this diplomat was treated. Thanks for joining us, Suzanne.
SUZANNEI think the key question here is the same as anyone else. I think the assumption that somehow this is acceptable by Americans is completely wrong. I don't see any reason why they are granted this right, that people theoretically we are innocent until proven guilty, and we have plenty of technologies now that are used at the airport. Why is anybody subjected to this? I don't think there'd be a diplomatic issue if we weren't doing stuff like that.
BELLANTONIThanks for you call, Suzanne. So, Guy Taylor, I wanted to ask you, one thing that we've seen is that India actually removed some barriers around the embassy there. Can you talk a little bit about that and what the response has been?
TAYLORWell, sure. I thought that was actually pretty interesting because it's more a move that is -- it's not as if there were large groups of demonstrators clamoring outside of the U.S. Embassy and removing these barriers was somehow going to open the floodgates to an Embassy takeover or something. I mean, I think this was more of a symbolic move by the Indian government saying, look, we're really upset and it feeds into what John Bellinger has been talking about here which is that the Indian government is very much aware of the internal thinking of the U.S. State Department from a legal standpoint, which is that we are very concerned here in the United States about how if we mistreat diplomats from foreign lands when they're here in the United States we have no leg to stand on in complaining about the mistreatment of our own diplomats.
TAYLORAnd by removing the barriers, the Indian government was sending a very dry and direct signal to Washington that look, are you putting barriers in Washington and New York up around our diplomats? Are you protecting them, or are you strip searching them? I mean, and so I think that was the message. There hasn't been any major fallout from this, and I don't know that the barriers were anything other than -- I haven't been to the Indian -- the U.S. Embassy in India in almost 20 years, so I don't know what it looks like. Perhaps one of the other guests has.
TAYLORI think though that the last caller brought up something that's been kind of an elephant in the room here which is this issue of a strip search. Okay. We have to ask ourselves where did the news of this come out, because as far as I can tell, and I say this at risk of probably being accused of misreading the facts in the case, but as far as I have been able to tell in my own research, the accusation of a violating strip search did not make its way into stories about this case until the diplomat, Ms. Khobragade, actually leaked a statement out and said that her rights had been violated in this strip search.
TAYLORSo we now are faced with this situation of does she countersue, or does she file a suit of her own and claim that she was mistreated and her rights were violated, or does she actually not have a case because, in fact, as the U.S. Attorney came out, as John said a minute ago, very strongly and said, look, she wasn't mistreated or treated any way that anyone else in the United States gets treated when they're arrested, and in fact, the U.S. Attorney went on just to add and said that in fact, she was actually given fairly unusual treatment in that she was allowed to make two hours worth of phone calls, sit in a warm vehicle, was not handcuffed in public according to what the U.S. Attorney's office has said.
TAYLORAnd so she was given quite a few rights. So I think really the caller made a great point. Would even focusing on this for the last hour had there not been this issue of a strip search, and it's an open question.
BELLANTONISure. And one thing that's also may be interesting to point out that the U.S. Attorney in Manhattan who is prosecuting the case is in fact Indian born, Preet Bharara, and he issued a statement that Guy just eluded to about misinformation, saying that he would uphold the rule of law, protect victims, and hold accountable anyone who breaks the law no matter what their societal status, and no matter how powerful, rich, or connected they are. John Bellinger.
BELLINGERThe long statement that was issued by the U.S. Attorney's office, I think, reflected the criticism that the U.S. Attorney had been subject to for having brought this case, and wanted to make clear that he had handled this in a perfectly normal way. Again, you know, let me say I think legally the United States government is on firm ground, it's a matter of international law. I still question whether it was actually necessary to arrest and detain this person for Visa fraud. Normally you would arrest and detain someone for a violent crime.
BELLINGERAgain the Vienna Conventions say that a consular official can be subject to arrest and detention for a grave crime which we define to be a felony, but essentially paying someone $3 instead of $9, while it's something that the State Department and the Justice Department are in fact very, very concerned about, but do we want to risk making an international incident. Was this the case to actually arrest the person, bring them in for a strip search. Frankly, I think there's probably some miscommunication here between the Justice Department and the State Department.
BELLINGERThe State Department had actually been responsible for conducting this investigation and then handed it over to the U.S. Attorney's office. They may well not have thought through what would happen next, whether the person would then be actually arrested. If they were going to be arrested, were they then going to be subject to a strip search? So it may well be that the State Department, legitimately concerned about abuse of foreign workers, did not think through what was ultimately going to happen here, and I think that's probably why we ultimately saw John Kerry personally issue a (unintelligible).
BELLINGERIt was not an apology, but a statement of regret. And that's actually pretty unusual that you would have the Secretary of State actually have to feel that they have to rush to the microphone or to issue a statement of regret.
BELLANTONIIn such a specific case. And in just a couple moments we have left, I'm going to turn for our final question to Steven Watt who is a senior staff attorney for the Human Rights Program at the American Civil Liberties Union. Do you anticipate any changes in how immunity is granted, and going forward what we're seeing with the diplomatic community over this case?
WATTNo. I don't think there should be any changes to the immunity laws. I mean, this is a case in which immunity didn't apply and that the United States actually in the circumstances followed the correct procedures. Ms. Khobragade may have a challenge, the manner of her arrest and her subsequent treatment which was, you know, if it's proved true, is unlawful and was not the correct manner of treating an official in her position.
WATTHowever, what the United States is doing is, you know as John points out, is in accordance with the law, and it's not the first time that the United States has been involved in a prosecution of a diplomat, and I believe is doing the right thing.
BELLANTONIJohn Bellinger, any final thoughts from you about what could happen going forward?
BELLINGERWell, now she is subject to prosecution, and we'll see whether she reaches some sort of a plea bargain. You know, I would be very surprised if she were ultimately detained further in the United States. I would guess that she might plead to something and then leave the country. Now, they've tried to actually transfer her from one part of the Indian government as a consular official to the UN mission for the Indian government, and at least so far the State Department has not agreed to do that. So it may well be that she will ultimately be asked to leave the country. We'll see.
BELLANTONIThank you very much. We will leave it there. John Bellinger, former top lawyer at the State Department under Condoleezza Rice, currently with Arnold & Porter in Washington D.C. Again we had Steven Watt, American Civil Liberties Union in New York, and Guy Taylor, the State Department for the Washington Times. Thank you all so much for joining us today. Interesting discussing. Wishing everybody a very happy holidays. Thanks for listening while I was guest hosting. I'm a Christina Bellantoni the incoming editor-in-chief of "Roll Call" sitting in for Kojo Nnamdi. Have a very happy holiday and best wishes, happy New Year.
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