See also: United States diplomacy requires a generous spritzing of PooPourri
The fallout over the Indian consular officer, Devyani Khobragade, whom the US Marshals humiliated through strip and cavity searching her despite her immunity (we learn now that it is full UN immunity!), has much greater interest for the Isaac Brock Society than perhaps we realize. It demonstrates the US’s stance towards other nations as being one of, “Do as I say, not as I do.” I.e., the US has become monstrous bully and hypocrite. When citing diplomatic protocols in his defense of accused murderer Raymond Allen Davis (see video of Obama’s plea), President Obama emphasized the concept of reciprocity. Yet now his administration violates the very principles that he iterated in that press conference by treating Devyani Khobragade with disrespect and by indicting her for Form Crime.
The fundamental issue in this diplomatic controversy is one of jurisdiction. The Indian government claims jurisdiction over the relationship between nanny Sangeeta Richard and her employer Devyani Khobragade. Indeed, Ms. Richard came to the United States under the Vienna Convention on Consular Relations (1963), which gives foreign consulates the right to import their own private staff, defined as,
“member of the private staff” means a person who is employed exclusively in the private service of a member of the consular post; …
The Visa paperwork that Ms. Khobragade had to fill out in order to bring her private staff into the US actually seems to violate the spirit of the protocol, which says,
Consular officers and consular employees and members of their families forming part of their households shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.
Thus, one could argue that questions on a visa form regarding how much consulate officials and their staff, including their private staff, receive in remuneration should normally be strictly the business of the sending country, for the protocol establishes the rights of those attached to consulate to enter the country, and this is not contingent upon whether staff would receive a fair wage. It was therefore inappropriate for the US to ask how much Khobragade would pay her private staff. The receiving country, according to the protocol, must not have its nose in the affairs of the consulate (see article 50) and it may not tax the consular officials, with some exceptions (such as capital gains taxes on property in the receiving country) that don’t apply in this case:
Consular officers and consular employees and members of their families forming part of their households shall be exempt from all dues and taxes, personal or real, national, regional or municipal …
Now if the US has no right to tax the private staff of consular officers, then it has no right to know how much the person is paid. Angered by this snoopiness, India has rewarded the US Consulates in India by demanding salary information concerning their Indian employees, to make sure that their employment standards are in conformity with Indian law. This is reciprocity at its finest.
Sangeeta Richard went to the United States as Ms. Khobragade’s private staff, and the Indian government claims jurisdiction over the relationship. Because of a dispute between Richard and her boss, the Indian government revoked Richard’s diplomatic passport, informed the US that she had left her employer and that she was apparently trying to emigrate to the US illegally. Also, an Indian court placed an order on Ms. Richard to desist from filing charges in the US against her employer. Despite these circumstances, the US attorney Preet Bharara decided to file charges against the Lady Diplomat, and further, claimed essential jurisdiction over the employer relationship between two foreign nationals who were in the country only as part of the consular mission of India.
Now, the US claims jurisdiction over all those who have US citizenship, regardless of the depth of their relationship with the US. Indeed, many so-called “US persons” may have dominant nationality of another country, and the US still claims the right to tax them, to require that they inform the US of their “foreign bank accounts” (which are actually domestic accounts for those who do reside abroad), and to force their “foreign financial institutions” to divulge their banking account information to the IRS. Thus, the US claims universal jurisdiction over the financial lives of all their alleged citizens no matter where they happen to live. Yet in the case of Sangeeta Richard and Devyani Khobragade, the US violates the sovereignty of India to assert her jurisdiction over her citizens who belong to her own foreign mission in the US, despite the international protocols protecting the immunity of diplomats.
Again, an a fortiori argument dismantles the claims of the US: If the US doesn’t respect India’s jurisdiction to settle a dispute between two of her citizens living in the US on diplomatic passports, how much more should other countries reject the US claim to tax so-called US persons abroad, who in most cases are of dominant nationality in their country of residence? And if foreign countries boldly reject the US claim of jurisdiction over these alleged US citizens, then they must also reject FATCA out of hand.
Furthermore, the US has not limited its jurisdiction to protecting Ms. Richard from her employer. Indeed, the State Department paid for airline tickets to bring Richard’s husband and two children to the US, so that India could not retaliate against them. India is furious over this. The US now claims the right to protect people who are citizens of other countries even when they are not in the US. This needs to be nipped in the bud. I support India’s wrath, for before we know it, the US will try to tax the whole planet, claiming to protect everyone in the world. The US is indignant that China and Russia have protected Edward Snowden. Well, then, please send fugitive Sangeeta Richard back to India!
A brilliant post. But, you must understand that the U.S. view of International law is law that applies only to other nations. The U.S. sees itself as:
1. The one country that is exempt from all law; and
2. The one country that has the duty to make and interpret laws for other countries.
Thank you for demonstrating the connection between the Richards case and citizenship-based taxation.
Nicely done. You’ve belled the cat. How can India negotiate an IGA with the U.S. after this atrocious behaviour by the U.S., which really knows no bounds?
Amazing, interesting analysis. I have spent several hours this past week and feel the case against the diplomat sounds extremely weak!
Just has exposed once again- Americans are bullies and hypocrites.
This is interesting …
Petros-thank you for this post continually reminding the world of connection between FATCA and USG attitude of exceptionalism…….. FATCA=Financial Cavity search!
@USCitzenabroad: The media has called India’s reaction “immature”. Yet it is childish to always interpret rules, which are supposed to be reciprocal, always to favor your own position. Apparently the Vienna diplomatic protocols were established to protect weaker nations in the field of diplomacy, from the bullying by the stronger nations. Ironic, considering the US’s position.
@Em, It is just a form she filled out. Can it be fraud if Devyani Khobragade filled the form understanding the meaning of an ambiguous question one way (to refer to her salary), and Bharara, the great genius prosecutor, read the other way (as Richard’s salary)? Then, the charge of fraud could have a reasonable cause argument, couldn’t it?
@Vijay, the case is weak. But India must not allow her to face an American jury. There is no way that she can receive a fair trial in the United States. (This was by the way, why Raymond Allen Davis would have hung if he had faced a Pakistani court). The US Constitution guarantees Devyani a trial by her peers, but I believe it impossible for the US to provide her with a trial of peers. Also, I believe that most of her alleged criminal activity took place in New Delhi, not in the US, where she filled out the paperwork for the United States. This creates a special jurisdictional issue of venue–how can she receive a fair and constitutional trial anywhere in the US. Obviously, she can’t. See the following post where I fret that if I were charged with a Form Crime, i.e., FBAR, I would be unable to receive a fair trial: http://isaacbrocksociety.ca/2012/02/15/fbar-on-the-impossibility-of-a-fair-trial-for-expats/
Do as we say, not as we do. When will have FATCA for South Dakota?
All I know is that the USA is the master of ambiguous forms. I tend to believe that the US agent did screw up and an innocent young woman is suffering the consequences. I wish Devyani Khobragade was safely back in India but they probably seized her passport.
The behaviour of the Prosecution is SO awful and so in character with that of a bully.
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Here is further coverage in NY Times:
India Finds New Methods to Punish U.S. Diplomats
The last paragraph is revealing:
Ms. Khobragade could leave the United States for India, never return and never face another day in court, but that seems unlikely because her husband, a professor of philosophy, was raised in the United States and has family there.
It contains one of the primary reasons why renunciation numbers are not much higher. Pay up or you’ll never see your relatives again.
The Sangeeta Richard/Devyani Khobragade case highlights some eccentricities of diplomatic and consular law. I was a diplomat for several decades and have diplomatic-law treatises on my bookshelf written by English and Belgian professors I know at least casually. It is true that diplomats accredited to consulates (rather than to consular sections of an embassy) have limited immunity. It’s also true that few countries care about the welfare of personal servants who accompany diplomats, whether they are protected by the Vienna Convention relating to accredited diplomats or that relating to consuls. I have brought nannies to several countries and my paying national insurance/social security/state pension contributions was never monitored, neither by my employing embassy nor by the host government. (Whether the workers were ever able to collect the pension, except in Britain where my last nanny remained and was naturalised, is another issue.)
The US Government cites international law only when it suits its interests. Readers may know that the USG walked out of the World Court in the midst of the Nicaragua case because it didn’t like the way it was headed. The NY Times published useful pieces on the attitudes of the two countries, and how India resents its expatriate son, now a federal prosecutor, from brining the case. https://duckduckgo.com/?q=site%3Anytimes.com+Devyani+Khobragade It was almost certainly brought with State Department Legal Advisor approval, presumably “pour encourager les autres” — a practice (brining cases sure to garner publicity) of many USG agencies and certainly the IRS. Whether they thought ahead to the impact on US-India relations in far more important areas (nuclear, Pakistan, terrorism…) has to be the object of wonder. It would have made more sense, diplomatically, for State to send around a directive that from now on all such servants were to be paid minimum wage and taxes and social insurance contributions properly declared and paid.
As I’ve mentioned before, diplomatic law can provide a loophole for FBAR “victims”: one of my acquaintances, a green-card holding professor at a US university for many years, took up a position with an international organisation with diplomatic status. He gave up his green card. He later left that position to become a minister in his home country’s government, a post he held until his death. That was before the current expatriation law and the IRS crackdown, but it seems to me a workable loophole for a very few highly competent individuals.
I should add this: In normal circumstances this case would be ended, quietly, by Ms Khobragade leaving the country and not coming back. It appears that’s impossible because her husband’s family is US-resident. Which leads one to wonder about his own tax status. The State Department does not accredit US-citizen foreign diplomats or US-citizen family members who must pay normal taxes (but, semble, are never attributed community property income of the diplomat spouse).
The abuse of migrant servants by diplomats around the world is notorious. This was an unfortunate case, but it appears the servant herself was introduced to a NGO which then prepared the case. One wonders what benefit Sangeeta Richards hoped and expected to receive, unless it was, ultimately, a green card for herself and her family. Here is information on her: http://www.dailymail.co.uk/news/article-2526719/Pictured-The-housekeeper-center-international-furor-arrest-Indian-diplomat-boss-kept-virtual-slave-leaked-letter-home-reveals-claimed-not-feel-like-servant-all.html
@punktlich,Thanks very much for these comments. I would add three more reasons why Khobragade hasn’t just returned to India: (1) The charges against her are just stupid–it is ridiculous that any of these charges are felony–they are misdemeanors, or at least should be. The same is true of FBAR–which entails felony charges–but when it comes to expats, it is a sledge hammer. Few in India believes that Khobragade is guilty of “human trafficking” or forced slave labour–when Richards made as much as domestic servants in India. (2) $250,000 bail, and exorbitant sum and unconstitutional to boot; (3) She had already been assigned to the UN and enjoyed full diplomatic status and should never have been charged in the first place. I think that India should stand its ground. Khobragade should leave only if her government fails to get the US to drop the charges.
Thanks for those comments. Much appreciated.
@Petros: I don’t want to appear as a pedant, but since it’s a field of law I benefited from for decades and lived with thereafter as an academic subject (and since it affected the nationality of two of my children) let me note this: diplomatic immunity attaches when a person is in transit to a new post of assignment, and upon arrival. But (the treaty continues) when the diplomat is already in country, it applies from the moment that assignment to a post is notified to the foreign ministry. In the case of the UN, the US Mission to the United Nations handles documentation on behalf of the Protocol Office at State in Washington. Until then, Ms Khobragade had “functional immunity” although as a senior diplomat normally L (the Legal Advisor’s office in State) would see to it that she got the benefit of the doubt. Here somebody wanted to make an issue.
Not so very different from what is going on with FATCA and FBARs and technical errors with 3520s and 5471s. I have encountered (cocktail party chatter only) a certain number of dual nationals who’ve abandoned any hope of returning to the USA and have taken out all their assets.
U.S. Marshals spokeswoman denied a cavity search took place on Khobragade:
“A senior Indian government source has said Khobragade also was subjected to a cavity search. Credic-Barrett denied a cavity search took place.”
There are also exceptions to the rule that all detainees get stripped searched, which DoS chose not to exercise:
“In special cases, such as the arrest of juveniles, the arresting agency can ask that the detainee be kept separate from other prisoners, which would not require a strip search, U.S. Marshals spokeswoman Nikki Credic-Barrett said.
In the case of Khobragade, Credic-Barrett said the Marshals Service received no such instruction from the State Department’s Diplomatic Security Service, which carried out the arrest.”
DoJ and assorted bureaucrats can justify as much as they like what they did and are doing. Certainly the law supports them: just because concessions are given to some celebrities and favored defendants does not entitle others to demand the same. But the lack of proportionality and the seeming vendetta will cost the USA in areas far more important: aircraft sales and exports generally, nuclear cooperation with an eye on Pakistan, drugs, intellectual property, terrorism and much more. Perhaps even taxes. FATCA, and assets of Indians resident in the US. Both the consul and her nanny are expendable. Some of these other issues are not.
More background on this in the Washington Post today: http://wapo.st/1lAYJYb
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Brilliant post Petros. Thank you for explaining it so lucidly.
I think the onus is on US to practice what it preaches and also on Indian judiciary to subsequently give justice to Sangeeta Richards and protect her from vindictive politics
Here is an additional article on this ongoing story:
Interesting article, but the most disturbing part is at the end:
This is a matter of the highest principle. Under NO circumstances should she plead guilty to anything.
A guilty plea to this charge, any included charge, or any reduced charge would allow the U.S. to argue their behavior was justified. Don’t plead guilty!