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In a feature at Foreign Policy, I explore in greater depth the case of Raymond A. Davis, a CIA contractor who shot and killed two Pakistanis on a motorcycle back on January 27. Many Americans know this as the case involving a clean-cut former Special Forces soldier turned diplomat who fired in self-defense as two Pakistanis were trying to rob him. Many Pakistanis know it as the case involving a U.S. spy who, in cold blood, shot and killed two Pakistani intelligence agents sent to tail him. The conflict is about more momentous questions than a double homicide in central Lahore.
One angle of the story that merits further attention is Washington’s attitude toward diplomatic immunity. It is of course standard operating procedure for governments around the world to give their intelligence agents diplomatic cover. But this means following a process of formal registration, and that process may have been botched in the Davis case. More generally, Washington’s recent attitude toward this process is riddled with contradictions and increasingly hard to comprehend.
As Eileen Danza notes in her recent work on diplomatic law, the United States has become aggressive in attempting to weed out spies in diplomatic clothing. It requires foreign missions to provide accurate and complete descriptions of the job assignments of staffers to help it in this process—those who are not in fact performing diplomatic tasks can be quickly sorted out and invited to leave. But the United States itself continues to abuse diplomatic cover, relying on loose and unclear descriptions of personnel as being involved in “security” or “technical assistance” or simply as “technical staff.”
Even more puzzling is United States practice as to when to assert the diplomatic privilege and when to bail after cover is blown. Juxtapose the Davis case, in which diplomatic immunity is tenaciously asserted on fairly flimsy grounds, with the Abu Omar prosecution in Italy, in which the United States abandoned the pretense of diplomatic immunity for a number of figures, like Robert Lady and Sabrina De Sousa, even though their diplomatic cover was well established, while asserting it aggressively for Jeffrey W. Castelli, widely known as the CIA’s Rome station chief and the apparent mastermind of the kidnapping scheme. The practice seems to be a series of subjective calls that may tell us only who has the most pull at Langley. The outcome alone suggests that decisions about invoking immunity are taken by the CIA rather than the State Department. That would also explain the government’s incoherent secrecy demands in cases like the De Sousa suit. Is secrecy being asserted to protect legitimate state secrets, or to cloak a government employee who has acted capriciously?
Whether diplomatic cover will effectively protect spies is increasingly questionable. The Abu Omar case shows that prosecutors are reluctant to accept diplomatic immunity when the actors aren’t actually diplomats and they have engaged in extremely serious criminal conduct—like kidnapping, torture, and murder. On the other hand, it is clear that these spy games undermine confidence in the entire concept of diplomatic immunity and thereby threaten the security of legitimate diplomats around the world. That’s a consequence that merits some attention in Washington and elsewhere.
More from Scott Horton:
No Comment — November 4, 2013, 5:17 pm
An expert panel concludes that the Pentagon and the CIA ordered physicians to violate the Hippocratic Oath
No Comment — August 12, 2013, 7:55 am
How will the Obama Administration handle Edward Snowden’s case in the long term?
No Comment — July 29, 2013, 11:36 am
Is it possible to simply disband the partisan FISA court?
Percentage of African countries in which it is illegal to practice homosexuality:
Americans consider orange cats to be friendly, tortoiseshell cats to be intolerant, and white cats to be aloof.
In Norfolk six black-tipped reef sharks, a bonnethead shark, a bowmouth guitar shark, six penguins, and a green sea turtle were evacuated from the Hunstanton Sea Life Sanctuary because of flooding.
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Notes on South Africa’s failed revolution
“I will never know what goes on in your mind, or what that shield of a smile behind which we try to advance should tell us.”