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!
One year later, an update on this case:
Lesson learned: nationalism is a two-edged sword. Honourable people use that sword to defend their homes against foreign invaders; dishonourable people accept the help of foreign countries in turning that sword against their fellow countrymen whom they deem “insufficiently patriotic” because they once lived abroad or married a foreigner. Not just the US but a lot of other countries don’t like dual citizens or people with intimate connections to foreigners, and will happily hang them out to dry. (I’m convinced this was a major reason why there was no vocal domestic opposition to FATCA in Asian countries.)