February 05, 2014

India-US ties face new test over Devyani's legal war



Chidanand Rajghatta,TNN | Feb 3, 2014, 03.32 AM IST

http://timesofindia.indiatimes.com/india/India-US-ties-face-new-test-over-Devyanis-legal-war/articleshow/29789835.cms
READ MORE Washington|US Attorney Preet Bharara|Khobragade episode|Indian diplomat|Immunity
India-US ties face new test over Devyani's legal war
The State Department last week legally backed the insistence of its law-enforcement brigade that Devyani Khobragade did not enjoy diplomatic immunity at the time of her arrest, and therefore US authorities were not wrong in arresting and detaining her.

WASHINGTON: Any expectation that New Delhi and Washington would tide over and quickly heal from the so-called Khobragade episode involving immunity relating to an Indian diplomat's alleged criminal infractions are being laid to rest. The two sides are in for a long, ugly, bruising battle, some of it already being played out in a New York courtroom.

The State Department last week legally backed the insistence of its law-enforcement brigade that Devyani Khobragade did not enjoy diplomatic immunity at the time of her arrest, and therefore US authorities were not wrong in arresting and detaining her. More to the point, Washington's legal interpretation gave a green light to US Attorney Preet Bharara to continue pursuing the case, with the observation that Khobragade does not presently enjoy immunity from prosecution for the crimes charged in the indictment.

''The Department of State concludes that Devyani did not enjoy immunity from arrest or detention at the time of her arrest in this case, and she does not presently enjoy immunity from prosecution for the crimes charged in the indictment,'' the January 29 declaration signed by Attorney-Advisor in the Office of the Legal Advisor of the Department of State Stephen Kerr said.

Bharara's office promptly submitted the declaration to the court as part of eight supporting documents aimed at showing that Devyani is not immune from prosecution and that the indictment against her should not be dismissed. The motion came in response to a request made by Devyani's lawyer Daniel Arshack on January 14 that asked the court to dismiss the indictment and terminate any ''open'' arrest warrants or requests for her extradition. Arshack now has time till February 7 to file his reply to the government's motion.

''The US Attorney is again wrong on the facts and the law. The court will decide these issues.'' Arshack said, soon after Bharara's deputies Kristy Greenberg and Amanda Kramer filed a 22-page memorandum on Friday.

While some diplomats maintained that the to-and-fro was part of the legal skirmish that was only to be expected, others saw dark forebodings over the State Department's legal sanction to proceed with the case despite efforts to defuse the situation on the diplomatic front.

Riding on the State Department legal advisor's declaration, Bharara said the US government has ''unequivocally concluded'' that Devyani did not employ her domestic worker Sangeeta Richard in her capacity as Deputy Consul General and so does not enjoy immunity from prosecution for the ''crimes'' for which she was arrested in December.

''The acts giving rise to the charges in the indictment were not performed in Devyani's exercise of her functions as a member of the mission both because they were performed well before her assignment to the Permanent Mission of India to the UN and because the hiring of Richard was not an official act,'' Bharara said, quoting the declaration.

Moreover, he maintained, Khobragade's attempts through her motion ''to concoct a theory of immunity out of a UNGA 'Blue Card' that she purportedly had for a brief Indian delegation visit to the UN that ended close to three months before her arrest...fails both factually and legally...''

The State Department's legalistic position, enabling what some Indian interlocutors see as Bharara's provocative language (which in effect accused the Government of India of ''concocting'' immunity for Khobragade), when New Delhi insists she had immunity all along, has caused much heartburn in diplomatic circles with talk of blowback.

While some mandarins cautioned that one should not conflate strategic ties with day-to-day bureaucratic and legal battles, others suggested that it was inevitable that the spat on the law-and-order side would spill over to the strategic turf.

Even former US diplomats who have served previously in India are surprised that the political wing in the State Department has allowed legal and security personnel to call the shots. One former US diplomat said it was inconceivable that this could have happened without the sanction of the highest level at the State Department (Secretary of State John Kerry) and the U.S ambassador to New Delhi (Nancy Powell).

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