The ransoming of Raymond Davis

By: Partap Chatterjee

You are accused of shooting two Pakistani citizens. Pay $2.3m. Get out of jail free.

If it sounds like a line from a chance card in a game of Monopoly, where the richest player wins, welcome to the world of life and death in Pakistan where the Obama administration has paid “blood money” to spring a CIA agent suspected of two killings from jail on Wednesday.

Raymond Davis, a former Blackwater contractor, who was employed by the CIA in Pakistan, was arrested for the killing of two Pakistani citizens in Lahore on 27 January 2011. One of the men was shot in the back as he was running away. The US government first claimed that Davis was protected by diplomatic immunity under the Vienna Conventions. On Friday, US officials paid the two victims families a reported $2.3m; and Davis was released less than seven weeks after he went to jail. (Compensation to families of civilian victims of US-led coalition forces in Afghanistan amounts to a few thousand dollars per person, if anything is paid at all.)

Consider the case of Shane Bauer, a freelance journalist, and a good friend of mine. We worked together to expose US funding of death squads in Iraq. On 31 July 2009, he was arrested by Iranian border guards while hiking in Iraqi Kurdistan, an area I too have hiked in. Almost 20 months later, he is still a prisoner in Iran, where the US government has barely lifted a finger to help him.

The charges against Bauer – who is accused of working for the CIA – are spurious. Indeed, his reporting has uncovered US government complicity in war crimes. But that may be exactly why he is getting so little help from Washington. The stakes are not that high in Bauer’s case: if the US government would be willing to sit down and talk, rather than pursue its game of nuclear brinkmanship, Bauer would go free.

The German government has done this for their journalists. Last month, Germany’s foreign minister, Guido Westerwelle, travelled to Tehran to secure the release of Jens Koch and Marcus Hellwig, who had spent 20 months in jail.

The Obama administration did the same for Laura Ling and Euna Lee in August 2009. Bill Clinton, the former US president, went on a mission to Pyongyang and met with Kim Jong Il, after which the two journalists were set free. Since Ling and Lee were investigating the North Korean government, it was an easy bargain.

The message that the Obama administration sent in Islamabad on Wednesday is loud and clear. If you work for the CIA, the US government will pay your way out of jail even if you are being held on murder charges. But if you are, like Shane Bauers, a US citizen wrongfully accused of being a spy but whose work has exposed the US government’s shame, your case will be no kind of priority.

So, for a murder suspect a ransom is paid, while an innocent citizen is left to rot. Does this contrast suggest an administration committed to human rights, the rule of law and freedom of the press?

CIA man in Pakistan may not have immunity

A former State Department lawyer says real questions remain about the legal status of Raymond Davis

By Justin Elliott

Supporters of Pakistani religious party Jamat-e-Islami attend a rally against Raymond Allen Davis in Lahore, Pakistan.

(UPDATED) An expert who previously worked in a key State Department diplomatic affairs position is questioning the Obama administration’s claim that Raymond Davis, the American currently imprisoned in Pakistan after killing two men, has diplomatic immunity.

A specialist in diplomatic law, Ron Mlotek served for 25 years as legal counsel at the State Department Office of Foreign Missions, which regulates foreign missions in the United States. In an interview with Salon, Mlotek said there remain crucial unanswered questions in the case, and that the question of Davis’ immunity is not nearly as clear-cut as the administration has argued.

“On the basis of what has been publicly reported, it appears to me that the State Department is relying on legal smoke and mirrors,” says Mlotek, who retired two years ago. In his former position, Mlotek dealt with many cases of alleged crimes by foreign representatives in the United States.

Davis was recently revealed to be a former Blackwater contractor working for the CIA in Pakistan, though it turns out those are not the most relevant facts when it comes to determining whether he has immunity.

Davis shot and killed two men in disputed circumstances while driving in the eastern city of Lahore last month; the U.S. maintains he acted in self-defense. An American vehicle that was dispatched from the “safe house” where Davis was living in Lahore then struck and killed a Pakistani bystander while rushing to the scene to pick up Davis. Subsequently, the wife of one of the slain men committed suicide. The case has sparked large protests in Pakistan.

Davis was arrested after the incident and has been held in Lahore while a court considers his claim of immunity. The Obama administration has argued that Davis’ detainment is not permitted because he has full diplomatic immunity — a position that, if he does enjoy such immunity, would be correct, according to Mlotek.

So the key questions are: How does one get full diplomatic immunity, and does Davis have it?

There are two relevant international treaties to consider: the Vienna Convention on Consular Relations (1963) and the Vienna Convention on Diplomatic Relations (1961).

When a diplomatic officer (someone who works at the embassy) or a consular officer (someone who works at a consulate) is dispatched to a foreign country, the United States informs the so-called “receiving state” that the officer is arriving and describes his or her job at the embassy or consulate. The mode of official communication is known as a “diplomatic note.” After getting the notification, the receiving state — in this case Pakistan — typically recognizes the person as a diplomatic officer or a consular officer and issues some kind of diplomatic ID card or notice of recognition.

Diplomatic officers get full immunity, while consular officers get only limited “official acts immunity.” This difference is crucial in Davis’ case. That’s because the administration has changed its story about Davis’ status. In late January, the administration described Davis as “a staff member of the U.S. Consulate General in Lahore.” Later on, they insisted that Pakistan had been officially informed in early 2010 that Davis was “a member of the administrative and technical staff” at the embassy.

Diplomatic officers who work at the embassy get absolute immunity, meaning, according to Mlotek, that they “could in theory pull out a gun and shoot down a family in cold blood and walk away and the foreign government could not lay a finger on them.” But consular officers have a lesser class of immunity that covers only actions that are part of their official duties.

“Davis’ official duties almost certainly would not have involved using an unregistered pistol against Pakistani civilians,” says Mlotek.

But, in a background briefing this week, an unnamed administration official seemed to claim that the U.S.informed Pakistan that Davis worked for the embassy in Islamabad and therefore that he has full immunity. The specifics of what the U.S. told Pakistan in 2010 are not clear. I’ve asked the State Department for more information on this and will update this post if I hear back.

Assuming what the administration is now claiming is true, there is a second set of potential flaws in the claim of full immunity, according to Mlotek. That is, if the U.S. informed Pakistan in 2010 that Davis was working at the Islamabad embassy, why was he actually working in Lahore?

Mlotek summarizes the potential problem:

“Suppose we not only lie about the fact that he’s a spy, but we lie about the fact that he has anything to do with the embassy in Islamabad. And then, to top it all off, not only is he not in Islamabad, he’s in Lahore. He’s not even working in the premises of the consulate. He’s working in a secret facility that we have not announced. The Vienna Convention specifically obligates the U.S. to tell Pakistan about where their premises are. And not only that, he’s carrying a weapon — we didn’t tell the Pakistanis that,” Mlotek says. “At what point do you say the diplomatic note was not valid?”

Mlotek also says a crucial concern when he worked at the Office of Foreign Missions was the “reciprocity angle.”

“What if the other guys did the same thing here? Would the U.S. allow the Pakistani agent to go free?”

UPDATE: State Department spokeswoman Nicole Thompson tells me that the January 2010 diplomatic note regarding Davis will not be made publicly available. “We don’t release diplomatic communications,” she said.

Justin Elliott is a Salon reporter. Reach him by email at jelliott@salon.com and follow him on Twitter @ElliottJustin More: Justin Elliott