'Raymond Davis' - FAQ

Continuing moronic statements by trolls on this blog and some no doubt military establishment-goaded television anchorpersons have forced me to address - hopefully for the last time - certain basic issues to do with the whole 'Raymond Davis' saga. Unfortunately, such is the deterioration of our national discourse and perhaps of our educational system that not only are people often unable to grasp simple arguments but are willing, immediately and without understanding the nuances of the points being made, to ascribe ulterior motives to anyone presenting facts that go against popular opinion. So for the sake of clarity, I will attempt to make my points as questions and answers in bullet form (no pun intended). Roughly the same questions have come up repeatedly in earlier comments.

The man known as Raymond Davis in custody

1. Do I 'support' 'Raymond Davis'?

No. I hold no brief for him or others like him. Nor do I wish to see 'security contractors' / yahoos like him roaming around in Pakistan.


2. Do I think US interventionism is okay in Pakistan?

Personally, I think crying about US interference in Pakistan's affairs after the 'Raymond Davis' affair is not only cretinous but also hypocritical - there has been American interference in this country's internal affairs almost since it was created and which has been welcomed wholeheartedly by our establishment which benefits handsomely from it. Moreover, it will continue to benefit from it in the foreseeable future as well irrespective of the public stances it takes. Nevertheless, no, I don't think it has generally been a force for good in the past and it has usually been counter-productive in the present.


3. Do I want Raymond Davis to walk free after killing two Pakistanis and being involved in the death of a third?

It really does not matter what I, or anyone else, may want. There is a small issue of diplomatic conventions that Pakistan is a signatory to. If he does have diplomatic immunity, Pakistani courts cannot try him unless the US gives its consent. I do think he should have a fair trial for the killings but, if he does have diplomatic immunity, the best Pakistan can do is ask the Americans to try him in the US.


4. Am I still claiming 'Raymond Davis' has immunity after all that has come to light about him?

I am not claiming anything beyond pointing out what is already there in the legal conventions and whatever evidence has so far appeared. The basic question on which this hinges, as far as I can ascertain and as has been pointed out earlier, is whether 'Davis' was a member of the US Embassy staff in Islamabad - in which case the Vienna Convention on Diplomatic Relations of 1961 applies to him and he has blanket immunity - or a member of the US Consulate staff in Lahore - in which case the Vienna Convention on Consular Relations of 1963 applies to him and he does not have blanket immunity. That determination is, in my opinion, the main one that needs to be made.


5. But he's an acknowledged spy! And he is a contractor, not a diplomat!

As I pointed out in one of my earlier posts on this issue, long before the shocker (not!) of the acknowledgement that 'Davis' works for the CIA, it does not matter as far as the legal standing of diplomatic immunity is concerned. The Vienna Convention of 1961 (not the 1963 Convention on Consular Relations) grants the same privileges to an embassy's "technical and administrative staff" as diplomats. Of course there are spies working on 'cover posts' in all embassies and anyone who has any doubt should go ask the Pakistan Foreign Office about how many intelligence personnel are deputed in our foreign missions on cover posts. Should they all go round killing people and claiming immunity? And does diplomatic immunity confer the license to kill? Obviously not. But that doesn't change the legal position.


6. But what about Shah Mahmood Qureshi's claim that the Foreign Office had determined that 'Raymond Davis' did not have blanket immunity?

Mr. Qureshi or the Foreign Office has yet to state the evidence on which this claim was based. Indeed, the Foreign Office has yet to make that claim officially itself. They may have valid reasons, especially if the US had 1) not actually notified 'Davis' as a diplomat to the Foreign Office (contrary to what the Americans are now claiming which would mean also that their official letter is fabricated) or 2) If the US had notified him as attached to the Lahore Consulate rather than the Islamabad embassy. However, we have yet to hear of the reasoning. The Pakistan Foreign Office does indeed have the right to determine diplomatic status under Pakistan law, but obviously this has to be based on solid reasoning.

There have been some in the Pakistani press who have pointed to lacunae in the Pakistani law that the Foreign Office must 'approve' diplomatic status even after another state notifies someone as a diplomat (an approval that 'Davis' had apparently not received), and which do not grant diplomatic status to 'technical and administrative staff' of embassies. Moreover, they have claimed that Pakistani law takes precedence over international law (i.e. the Vienna Conventions). The Vienna Convention applicable to embassy staff (1961) itself only needs the 'sending' state to notify (there is no clause for approval) and, as pointed out before, applies equally to an embassy's technical and administrative staff. The common sense understanding of international law is that if a state ratifies an international treaty, it must ensure that its own laws comply with it. However, this is a matter of legal haggling and should this matter (of whether local law takes precedence over ratified international law) become a real issue, it would seem the International Court of Justice would have to be referred to, where in my humble opinion, if this is all that Pakistan's position is, its case would be weak.


7. Don't you think the US has been lying about 'Raymond Davis'? And don't you think the US media has been equally hypocritical by hiding facts it knew about him?

Yes and yes. Absolutely. The US government's response in the immediate aftermath of the incident was especially muddled and led to suspicions in the minds of most Pakistanis that it was trying to hide its guilt (which it probably was). The US media's capitulation to American government pressure to withhold information about 'Davis'' real activities has been particularly shameful. The Pakistani media should not be emulating it.


8. Don't you think there is more to this issue than what we already know?

Almost certainly. My analysis is based purely on what is already in the public domain. But it needs to be pointed out that so are the claims of almost everyone else in the media and my criticism of some of them is predicated on simply pointing out the flaws in their arguments.


9. So what should Pakistan have done? Do you want Pakistan to take this lying down?

There were a couple of recourses available to Pakistan before this sorry saga unfolded. One, it should not have given 'Raymond Davis' a visa if it had any doubts about him. Even after it granted him a visa, it could have expelled him from the country if it found his activities incompatible with diplomatic norms. However, if 'Davis' indeed has diplomatic immunity, all it can do now - aside from asking the US to lift it - is to declare him persona non grata and expel him and request the US to try him in its courts.

 Everybody hates 'Raymond'

What we are seeing, unfortunately, is a whipping up of emotionalism and fanciful conspiracy theories to cover up the dire incompetence and / or collusion of our security services. There are claims now that the visas were granted without proper checks because the security services were cut out of the loop in foreign capitals by the political establishment. First of all, if this is even true, why was this not raised as an issue at the time? 'Davis'' first visa was issued in 2009. He received two subsequent visas in 2010, both from Islamabad. Were our security services sleeping? Or are they so riddled with bureaucracy that their flagging of a violation of norms took until 2011 to trickle up to the relevant officers?

Secondly, even if one accepts that our security services were cut out of the loop in the grant of visas, what about the entire time 'Davis' and others like him were living in Pakistan and conducting their "subversive" activities? Are we to take it that, in the almost two years he kept coming in and out of Pakistan, our intelligence was so incompetent that it never once spotted his activities and flagged them? Shouldn't they have paid particular attention to people who allegedly bypassed normal security clearances? It would seem that all this hoopla now is to cover up the fact that our security services had dropped the ball.

We are now hearing all sorts of stories about 'Davis' - from the silly story in The News by Marianna Babar about his addiction to niswar (as if chewing tobacco or snuff is a rarity among US servicemen particularly from areas like Virginia state), to claims in the Express Tribune that 'Davis' was orchestrating bombings by the Pakistani Taliban (sourced to anonymous intelligence personnel) to claims on Geo and in The Nation (sourced from some alleged Russian intelligence report) that he was involved in supplying nuclear material to Al Qaeda in order to frame Pakistan. We should be clear about one thing. Regardless of the authenticity (or likely not) of these stories, they are basically a smokescreen that obscure the real issues of this case. They matter not a whit in whether 'Raymond Davis' is tried in Pakistan or whether we are forced to expel him without a trial.


10. Should Pakistan reassess its ties with US intelligence and its covert operations programme?

By all means. But Pakistan's establishment should do so in a cool, logical manner, having weighed the consequences of its actions. This should not be done by whipping public opinion into a frenzy through post-facto planting of stories and side-tracking issues. You want to kick out Xe (nee Blackwater) operatives from Pakistan? Absolutely do so. Why wait until they cause damage?


Footnote: You may want to read this piece from Foreign Policy that came in as I was writing. It deals with what may have allegedly been agreed between the Pakistani and American military's top officials particularly regarding this case in a closed-door meeting in Oman yesterday. If this report is correct, you may actually very soon see a complete change of tone in the media as well.

A Brief History of Diplomatic Immunity (Updated)

Since we Pakistanis often suffer simultaneously from the twin demons of megalomania and paranoia - verily we are better than everyone else and that is why everyone is out to get us - we often also look at history through a rather selective and distorted lens. Unfortunately, none typify this mindset more than the doyens and doyennes of the Pakistani electronic media, in whom a curious mix of hyper-patriotism, half-baked information, sincere ignorance and arrogant bluster seems generally to hold sway.

Take the issue of the day on Pakistani media: whether the American known by his apparent pseudonym "Raymond Davis" - who shot dead two men in Lahore - can be tried by Pakistani courts or whether the US government has any right to claim diplomatic immunity for him. I am not going to offer my own opinion on this because, for better or worse, this is an issue for the US and Pakistani states to sort out. (I should, however, point out that, personally speaking, I do not think armed Americans or armed anyone should be roaming around the streets of Pakistan.)

But having seen numerous commentaries on television where emotive claims have been made about how Americans have not respected diplomatic immunity in their own cases, how immunity does not extend to serious crimes or how Pakistani diplomats have never been extended this kind of privilege, I just want to direct readers to a few examples.

Here's The Independent reporting in 1997 about a case in which a drunk Georgian diplomat killed a 16-year-old girl in New York with his reckless driving and the US requested a waiver from immunity for him. (The paper reports that Georgia was unlikely to approve the request though it actually was approved at the discretion of the Georgian government and the diplomat was sentenced for 7-21 years. He was transferred back to Georgia after serving three years [link courtesy @qabacha].) The piece also cites other incidences of less egregious crimes by diplomats that go unpunished. Appropriately for us, the story is titled "Can A Diplomat Get Away With Murder?"

You may also recall the shooting dead of British constable Yvonne Fletcher apparently by Libyan embassy staff in London in 1984 as well as the wounding of 11 others. Diplomatic immunity allowed the staff not to be prosecuted at all, though Britain subsequently broke off diplomatic relations with Libya. Fifteen years later, Libya accepted "general responsibility" and paid compensation, though some experts continued to question whether the police officer's death was actually caused by someone shooting from within the embassy.

Coming to Pakistani diplomats invoking diplomatic immunity, let us recall the case of our Ambassador to Spain, Mr. Haroon-ur-Rashid Abbasi, who Pakistan withdrew from his post in 1975 without allowing prosecution when heroin was discovered in his suitcase.

Let us also recall the case of our longtime permanent rep at the UN, Ambassador Munir Akram in 2003 who was accused of assault by his then girlfriend. The US also asked Pakistan to waive immunity in that case, which Pakistan did not oblige. (The case was eventually settled when Mr Akram persuaded his girlfriend to withdraw the charges against him).

So, as they say, au contraire, my friends.

Some final points, and please remember that we are only taking issue with the 'facts' of the case as presented in the media. Television analysts have almost unanimously claimed that "Davis" did not have a 'diplomatic visa'. It might behoove someone to ask our media pundits if they have ever actually seen a Pakistani diplomatic visa. From our own investigations, it seems Pakistani visas have no such specified category of 'Diplomatic Visa' (unlike some other countries). In fact, according our sources, all foreign diplomats receive Pakistani visas with the marking "Purpose of Visit:" "Official" or "Official Business" (not Official / Business, another category that does not exist) on their diplomatic passports. If they carry such a visa on their diplomatic passport and the Foreign Office has been so notified, they receive diplomatic immunity during their stay in Pakistan.

Here are some scans of Davis' passport as presented on DawnNews' Reporter programme...

This is the marking on his passport, which clearly states that he is on "diplomatic assignment" (click picture to enlarge):

This is his current visa, issued incidentally not in Washington (as claimed by Shireen Mazari on Geo and Syed Talat Hussain on DawnNews) but in Islamabad:

In fact, "Davis" only once received a three-month visa in 2009 from Washington. His subsequent 4-month visa in 2010 and his current 2-year visa were both issued within Pakistan.

Kamran Khan on Geo also went to great lengths to 'break the news' that "Davis" is a spy who works for the CIA. He almost certainly is. But not only is that not amazing insight, we have to ask, so? Is his actual work the issue of contention here? As former ambassador Zafar Hilaly pointed out on Dunya, spooks get posted on "cover postings" abroad all the time, including by the Pakistan Foreign Office, and they all receive diplomatic immunity under the Vienna Convention. Let's at least be clear what we are arguing about.


: : : UPDATES : : :

There have been some comments questioning some of my assertions in this post, which have been answered in the comments section. You may want to have a look.

A couple of other cases have been brought to our notice which we are also sharing. The first is the case in January 2001 of a Russian diplomat who killed a woman in Canada while driving drunk. A couple of quotes from this piece are worth pointing out.

"Andrey Knyazev was charged with criminal negligence causing death, impaired driving, failing to provide a breath sample, and criminal negligence causing bodily harm. Knyazev immediately claimed diplomatic immunity and on Monday, Russia denied Canada's request to lift it. [Russian Ambassador Vitaly] Churkin urged Canadians not to judge all Russians on the actions of one man. But he defended his government's right to recall Knyazev, saying it's tradition and common practice in the diplomatic community. “Many people are not happy that we didn't lift the diplomatic immunity," Churkin said. "The Canadian government has expressed its displeasure but recognized that this is our right.""

And this bit of wisdom from Canada's Foreign Minister that Pakistanis may also want to understand:

"[The] tragedy has raised questions about the use of diplomatic immunity to escape prosecution. But Foreign Affairs Minister John Manley says he will not use this case to press for changes. "There's an old saying among lawyers that hard cases make bad law," Manley said following a cabinet meeting Tuesday. "I think that (revising diplomatic rules) is something that we'd want to look at in a broader circumstance, not in the situation which we're in now," he said."

Incidentally, Shahid Saeed has also pointed out two further cases where Pakistani diplomats have invoked diplomatic immunity. The first involved Col Mohammad Hamid, a military attache in Pakistan's High Commission in London, who was caught in 2000 having sex with a prostitute in his car in a public place. When caught, Hamid immediately invoked diplomatic immunity and therefore could not be arrested. Here's an Indian Express report of the incident, which was also reported in the English papers.

The second involved the arrest in April 2001 in Kathmandu of Pakistan's first secretary Mohammad Arshad Cheema. 16kg of high-intensity explosive RDX were recovered from his residence. The Indian government believed him to be also linked to the hijacking of the Indian Airlines flight IC-814 which resulted in the freeing from Indian prisions of (subsequently Daniel Pearl murder accused) Omar Saeed Sheikh and Jaish-e-Mohammad leader 'Maulana' Masood Azhar. This report from the respected Indian magazine Frontline presents a wider and less one-sided perspective on the arrest. It also provides evidence of two things we already asserted in our post: that spies (and even military operatives) are often posted by foreign governments under diplomatic cover and that diplomatic immunity extends even to grave crimes. Cheema was expelled from Nepal rather than be prosecuted even though, by any definition, possessing high intensity explosives for ulterior motives is a very serious charge in any country.

Cutting Through the Emotionalism

Can we just express how refreshing it was to watch Najam Sethi's first appearance on Geo tonight? In the middle of the hyperventilating cacophony surrounding the shooting to death of two men in Lahore by a contractor of the US embassy (and the death of a third in a hit and run accident apparently at the hands of an American consulate vehicle), Sethi began his new programme Aapas Ki Baat with the warning that he wanted to put emotionalism aside and analyse the incident only in terms of the facts. That in itself is an all too rare approach on our television screens these days. But what followed was close to a masterclass for other television anchors on how to impart clear, precise information with a logical, rather than emotional, analysis.

Not only did Sethi cite the actual clauses of the Vienna Convention on diplomatic immunity (which Pakistan has ratified) that have been furiously talked about but never actually specifically referenced, but also put into context the whole issue in light of contemporary history and geopolitical realities. Now, others may question his interpretations of the Vienna Convention or the heretofore unknown 'facts' he presented as definite realities (we have no way of determining their veracity but he did stake his reputation on their authenticity), but I hope such challenges, if they do come, will be based on proof rather than vague emotionalism. His main contentions were:

1) Irrespective of a non-diplomatic visa (which seems to have become the main issue for some channels), a diplomatic passport - as the US claims the killer has - may still grant the man known as Raymond Allen Davis* diplomatic immunity under the Vienna Convention. [*This is assumed to be a fake name.]

2) The Vienna Convention actually grants immunity to diplomats (and their technical staff) from ALL criminal prosecution. No diplomat or foreign mission operative may be arrested by a host country, no matter what their crime (except in cases of property). (You may verify this from Clause 29-31 of the Convention.)

3) Since the American government has claimed diplomatic immunity for Davis, the Pakistan government must either accept their claim or the Pakistan Foreign Office - as the constitutional authority to decide such matters - must dispute this status. The courts are not the arbiters of the Vienna Convention under Pakistan's own constitution.

4) By claiming to leave the matter in the hands of the courts or the Punjab government, the Pakistan Foreign Office - and by extension the Federal government - is in violation of Pakistan's own constitution which details how issues of diplomatic immunity are to be handled. The Punjab police and Punjab government were wrong only to the extent that they should have referred the matter immediately to the US Consulate or the Pakistan Foreign Office before arresting Davis.

5) There are some 50-60 such contractors working for the US Embassy in Pakistan, who are all Blackwater-type operatives and whose job involves spying and ferreting out leads to trace Al Qaeda and Taliban leadership. Under a secret treaty signed by the military government of General Pervez Musharraf, a Joint Special Operations Command (JSOC) allows such operatives to work in Pakistan as well as Afghanistan. The important thing to remember here is that the military and the intelligence agencies are fully on board about this and know full well the mandate of these operatives. (This claim by Sethi, if true, of course flies in the face of those who have recently been painting Pakistan ambassador to the US Husain Haqqani as the principal villain in granting visas to these operatives, as if such visas are not overseen and approved by the ISI. It also means that those who point out that the Vienna Convention applies only to the discharge of official duties by diplomats and that Davis could obviously not be on any official mission at Mozang Chowk in Lahore, could be countered by the simple assertion by the US Embassy that he was.)

6) In case the Pakistan Foreign Office does decide to dispute diplomatic immunity to Davis, it will probably have to bear the brunt of reciprocal action from the US for reneging on a bilateral / international treaty.

7) Even if diplomatic immunity is denied to Davis, he will most probably be acquitted by the courts since his plea of self-defence will be very strong. As evidence for this contention, Sethi cited his own information that the two men killed by Davis were indeed brandishing weapons, that they were actually shot in the chest or on the side (contrary to news reports of their being shot in the back) and the context of previous attacks on foreigners in Pakistan and the atmosphere of fear that they have created.

Incidentally, Sethi does not address the death of the third man who was run over but it bears recalling that Davis is not charged in that case and the US Consulate has refused to acknowledge that its vehicle was involved. Sethi was also at pains to clarify that he neither condoned Davis' actions nor that he supported such infiltration of secret American agents into Pakistan. In fact, he also condemned such commandos roaming freely around Pakistan under the guise of diplomatic cover. But the solidity of his programme rested on the fact that he was able to separate out a dispassionate analysis of a given situation from the patriotic impulse that seems to overtake our other television analysts.

This does not mean, in any sense, that this issue will not become a hot political issue, particularly serving as a lightning-rod for popular disaffection with American policy but also helping political actors from making opportunistic capital off it. Or that the Peoples Party government is not now stuck between a rock and a hard place. Sethi himself acknowledges this. But it is good to have more than just one side of the debate, particularly when that one side is often also misinformed.

For those who missed the programme, I am attaching the clips below. But first it might also be useful to see how another programme on the same channel, Aaj Kamran Khan Ke Saath, dealt with the issue, just in the previous hour, and which trotted out that doyenne of hyperventilation and hyper-patriotic confused thinking, Ms. Shireen Mazari, to make its point (the segment begins around 1:10 and ends around 11:30).

Don't miss how Ms. Mazari fudges the issue of diplomatic immunity by referring to a waiver in other cases (which obviously implies immunity). Remarkably this was not even the worst fudge of an analysis on our screens.

In stark contrast, here's the full Najam Sethi programme:

Part 1:

Part 2:

Part 3:

Part 4:

I suppose kudos to Geo are also in order for finally bringing some rationality to their programming. See? It's not all that bad.