Obama Calls Raymond Davis "Our man in Pakistan"

"With respect to Mr. Davis, our diplomat in Pakistan, we've got a very simple principle here that every country in the world that is party to the Vienna Convention on Diplomatic Relations has upheld in the past and should uphold in the future, and that is if our diplomats are in another country, then they are not subject to that country's local prosecution."
--President Obama, Feb. 15, 2011

Raymond Davis is a former Special Forces soldier who, according to the State Department, works for the U.S. embassy in Pakistan. Last month, he shot and killed two Pakistani men in Lahore under mysterious circumstances.

Davis has claimed the men were trying to rob him. The incident took place about eight miles from the U.S. consulate, and Davis was carrying loaded weapons and had a GPS satellite device in his possession. U.S. officials say the men pointed weapons at Davis and he thought his life was in danger. Police say Davis shot each victim five times, including in their backs, and lied to police about how he arrived at the scene.

In a video of his questioning released by Pakistani police, Davis identifies himself as an employee at the consulate in Lahore, saying, "I just work as a consultant there."

Another consulate vehicle, a Toyota Land Cruiser with tinted windows -- which, according to a police report, arrived after the incident in an apparent effort to rescue Davis -- struck and killed a motorcyclist in the aftermath of the shooting. The widow of one of the men killed by Davis then committed suicide.

Four dead people and an imprisoned American are a recipe for a diplomatic disaster. The United States has insisted that Davis, as an embassy employee, has diplomatic immunity and must be released. Sen. John F. Kerry (D-Mass.), a major backer of $3 billion in aid to Pakistan, flew to the country this week to press for Davis's release and predicted the case would be completed "in the next few days." But a Pakistani court on Thursday gave the Pakistani government three more weeks to determine whether Davis qualifies for diplomatic immunity.

President Obama raised the stakes in the dispute at his news conference this week, when he referred to Davis as "our diplomat in Pakistan." The president's phrasing went beyond the State Department's assertion that Davis was a member of the "administrative and technical staff" at the embassy.

Senior State Department officials have said that Davis was not supposed to carry a weapon in Pakistan, while other U.S. officials said that he was a security contractor and did have permission to carry the weapon.

Pakistani news reports have said Davis worked for the Central Intelligence Agency, but the United States has steadfastly declined to say anything beyond the fact that he works for the U.S. government.

Clearly the pin-striped set has evolved over the years, but many Pakistanis have alleged that Davis is a spy who must face justice for the killings. So does he have diplomatic immunity?

The Facts

The key document governing diplomatic immunity is, as the president stated, the 1961 Vienna Convention on Diplomatic Relations, specifically articles 29, 31, 37, and 39. The articles must be read together to get a full understanding of their meaning. Here are the key points:

A diplomatic agent "shall not be liable to any form of arrest or detention." (article 29)
"A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State," with certain exceptions involving property and commercial activity. (article 31)
"Members of the administrative and technical staff of the mission, together with members of their families" will have the same privileges and immunities in articles 29 and 31 as long as they are not nationals or permanent residents of the country. The one exception is that they are not immune from civil suits for acts performed outside the course of their official duties. (In other words, they can be sued if they run someone over when they are off on vacation.) (article 37)
"Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed." (article 39)

The U.S. embassy appears to have complicated matters by first sending a diplomatic note to the Pakistani Foreign Ministry on Jan. 27 describing Davis as "an employee of U.S. Consulate General Lahore and holder of a diplomatic passport." A second note, on Feb. 3, described him as "a member of the administrative and technical staff of the U.S. embassy."

The difference in the phrasing of Davis's employment has allowed Pakistani officials to argue that Davis is actually covered by 1963 Vienna Convention on Consular Relations, and thus has a lesser form of immunity.

However, Article 43 of that Convention states that "consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions." There are exceptions for some civil disputes, such as "damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft."

The State Department insists that Davis was identified to the Pakistani government as a member of the technical and administrative staff of the embassy when he arrived in the country, and as such enjoys full immunity. John B. Bellinger III, a partner at Arnold & Porter who was the chief State Department legal adviser in the Bush administration, said in any case he would be fully covered as a consular employee as well.

"It's my understanding that State notified him as a member of the Embassy A&T staff, not consular staff," Bellinger said. "But consular staff also enjoy immunity from the jurisdiction of the receiving state with respect to their consular functions."

Bellinger added: "People are overblowing the 'administrative and technical' staff distinction and making it sound like it's something nefarious, which it is not. It is not a made-up term. A&T staff are an accepted category of staff assigned to an Embassy or Consulate, and are described in the Vienna Convention on Diplomatic Relations."

State Department spokesman P.J. Crowley said that U.S. diplomats do not carry cards attesting to their diplomatic immunity. "Once we provide a diplomatic note that an individual has arrived in country, from that point forward, he or she has diplomatic immunity," he said.

Complicating matters even further is that the language of the 1972 Pakistani law implementing the 1961 Vienna Convention puts the onus on the country's weak government to certify that the person in question has diplomatic immunity if a dispute arises. "The federal government is scratching its head, struggling [with] what stand to take, how to bridge this gap between the Vienna Convention and the deficient implementing law," Pakistani international law expert Ahmer Bilal Soofi told National Public Radio.

In the United States, there have been several high-profile cases in which foreigners have escaped prosecution because of diplomatic immunity, at one point leading to an unsuccessful push in Congress to strip relatives and dependents of diplomats of the privilege.

In 1982, the son of the Brazilian ambassador to the United States shot and seriously wounded a D.C. nightclub bouncer and escaped prosecution because of diplomatic immunity. The State Department even allowed him to stay in Washington.

In 1981, the son of a low-ranking attaché at the Ghanian U.N. mission was arrested in New York after a series of violent rapes at knifepoint. Although two of the victims positively identified their alleged assailant, he was released 45 minutes after he was taken to a police station for questioning and later returned to Ghana. "He looked at me when he left the precinct house and snickered and said, 'I told you I had diplomatic immunity,' " the police detective later told Congress. "He was looking at the women, too, and laughing. They were crying hysterically."

In 1997, Gueorgui Makharadze, the number-two official in the Georgian embassy and a rising diplomatic star, killed a teenage girl in a drunk-driving incident in Washington. In that case, the Georgian government waived his immunity after a request from the State Department; he went on trial and was convicted of manslaughter. The Georgian president at the time, Eduard Shevardnadze, called for new rules on diplomatic immunity, saying, "I cannot imagine diplomacy and politics devoid of moral principle."

The Pinocchio Test

If the State Department is correct and Davis was identified as a member of the embassy's administrative and technical staff when he arrived in Pakistan -- and he was accepted by Pakistan on that basis -- then he should be covered by the Vienna Convention and receive diplomatic immunity, no matter what his job was or how heinous his crimes. The United States has upheld that standard in the past, letting alleged criminals go free. It also does not matter what agency Davis works for back in the United States; U.S. embassies are often staffed with personnel from the Defense Department, Agriculture Department and the like, and they all have diplomatic immunity.

(Many governments place spies on their diplomatic employment list, and if caught by the host country, they are often ejected or exchanged for another spy or prisioner. Some Pakistani officials have suggested that Davis could be exchanged for Aafia Siddiqui, an American-educated Pakistani who was sentenced to 86 years in prison for trying to kill her American interrogators in Afghanistan.)

President Obama, however, may have pushed the envelope when he referred to Davis as "our diplomat." Davis may have had diplomatic cover, but not many diplomats carry a Glock pistol -- and then use it with lethal results. The circumstances of his employment -- and the incident in Lahore -- remain too murky to make a definitive judgment on the president's statement at this point.

By Glenn Kessler

Withholding Judgment