US prosecutor fires back over arrest of Indian diplomat

So I understand that there is a thread on the Indian diplomat being arrested, but I felt like this article is different enough to have its own thread (mods, if you disagree I don't mind if you close the thread). Apparently the U.S. Prosecutor is defending the arrest and saying that some of the events in question regarding the arrest have been blown out of proportion.

US prosecutor fires back over arrest of Indian diplomat

The lead U.S. prosecutor in the case against an Indian diplomat now at the center of a diplomatic uproar fired back against those calling for her release, issuing a defiant statement defending the charges -- while potentially undermining State Department officials trying to tamp down the tension.

So the prosecutor is adamant about this despite it making U.S. - India relations worse. Though, upon reading the article, maybe the prosecutor brings up some good points.

Devyani Khobragade stands accused of lying on a visa application about how much she paid her housekeeper, an Indian national. Prosecutors say the maid received less than $3 per hour for her work.

"One wonders why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?" Bharara said in his lengthy and detailed statement.

"The question then may be asked: Is it for U.S. prosecutors to look the other way, ignore the law and the civil rights of victims (again, here an Indian national), or is it the responsibility of the diplomats and consular officers and their government to make sure the law is observed?"

This is a great point. Everyone is upset about possibly upsetting Indian relations, but what about the poor housekeeper?

U.S. officials acknowledge Khobragade was strip-searched, but described it as standard procedure. Bharara further clarified that this was done in a private setting by a female officer. Bharara also disputed many of the claims about her treatment. He said she was, among other things, given coffee and offered food while detained.

Bharara said Khobragade, who has pleaded not guilty, wasn't handcuffed, restrained or arrested in front of her children.

Further, he said, she's alleged to have treated the housekeeper "illegally in numerous ways," paying her "far below" minimum wage and having her work far more than the amount of time contracted. Further, he said she was alleged to have created a second contract that was concealed from the U.S. government. Plus he said the victim's family had to be brought to the United States amid an attempt in India to "silence her."

Standard procedure for the strip search and was done by a female officer, plus she wasn't arrested in front of her children like originally reported. Also, note the additional contract. What is that for? Plus overworking her employee is a gross offense, especially if you don't pay them for it.

Earlier Thursday, an official in India's External Affairs Ministry told the Associated Press that Khobragade claimed to Indian authorities in July that the maid had disappeared and was trying to blackmail her. According to the official, the housekeeper said she would not report Khobragade if she agreed to pay her more money and change her visa status to allow her to work elsewhere in the U.S.

Khobragade filed a complaint with New York police and New Delhi police, the official said. It was not clear what action was taken in the U.S., but New Delhi police issued a warrant for the maid's arrest if she returned to India.

So naturally, New Delhi's response is to charge the housekeeper. Apparently, being underpaid and overworked then reporting it is a punishable offense in India.

Now understandably this is Fox News, so take all this with a grain of salt. I just wanted to show that there are two sides to this issue and that maybe we shouldn't jump to conclusions about everything. What say you ATS?

Let India be upset all they want....maybe the US will take all of those call center/IT jobs back from India and employee our own citizens with those jobs instead. I'm so sick of calling for tech support and getting a foreigner on the other end of the line.

On Topic: The US did the correct thing by arresting this woman; although, I'm not sure a strip search was necessary. Also, out of curiosity, did "diplomatic immunity" not apply to this particular diplomat?

Well, for one, none of this sounds urgent enough not to respect the imunity of a diplomat. Remember, they can pretty much do what they want and get away with it. For example, lots of 'US diplomats' actually work for the CIA or the NSA and spy on the countries they work in, thus clearly breaking the law of these countries.

Secondly, if now officials arrest people who overwork and underpay their employees, they'll have a lot to do. I'd say they should start with the owners of Walmart.

According to what I read, the US State Dept maintains that she has a limited form of diplomatic immunity: it protects her in all official functions of her position, but she's on her own if she commits any violation of local law while not serving as a diplomat.

Her attorney says she has diplomatic immunity with no limitations. The US State Dept, not so much:

Members of consular posts, such as Khobragade at the time of her arrest, do not have the same level of immunity as those who work at diplomatic missions. Consular officers have some immunity involving official acts, but their "personal inviolability" is "quite limited," the document says. They may be arrested and detained for alleged felonies, and may be prosecuted for misdemeanors. Their families have no immunity of any kind.

reply to post by Sirrurg


Well the issue here is that the woman was paid below minimum wage. Say what you want about Walmart and companies like it, but at least they pay their employees minimum wage, and overtime is paid appropriately as well.

Personally, I'm not sure where I stand on this. I always kind of viewed diplomatic immunity with disdain. Giving someone a free pass to do whatever they feel like doing in a foreign country despite the laws of that country is a quick ticket for abuse. I don't like it when US diplomats do it or when foreign ones do it. I feel like it is disrespectful to the country that they are visiting.

for those who think the poor maid was being mistreated and underpaid

Only claims of disparity in Pay which is contentious considering the Nanny's Free House rent, Free food, Free access to chauffeur driven car, Free clothes, Free Medical Insurance, Free dental insurance, Free death Insurance, Diplomatic passport and its privileges and her salary. Her CTC would easily be 5,000 $ per month or more. There is NOT even a prima facie case against the Indian diplomat.

3. In fact considering your history with illegal immigrants, Why was it that even though the nanny absconded from her work place in July and had her Indian passport revoked she was not arrested by the NYPD ?

4. Why was it that when the Delhi High court passed an injunction against the nanny that she was not declared an illegal fugitive in the eyes of the law ?

5. Why did the govt. of US provide such special treatment to an illegal Indian fugitive from law ?

6. Why did the US further provide a visa for her husband and child by 10th December and facilitate their escape into the US and THEN arrest the Indian diplomat on 12th December ?

7. It was the nanny who claimed a salary of more than 4,500$ when she filled the DS 160 form for A3 visa. Why is she not arrested for Visa fraud when she already had a contract with the diplomat for a far lesser salary ?

8. It can be clearly seen that the nanny was the one perpetuating the fraud, worst that can be claimed is that the Indian diplomat aided and abetted in this fraud (alleged).

Relevant clause is Article 41 which states,

1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. (Grave crime is usually defined as Murder, Rape, Robbery etc. )

2. Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction in their personal freedom save in execution of a judicial decision of final effect.


3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible.

Article 72 does discuss customarily favored treatment beyond the limits of the Convention. This could be what infuriates Indian officials so much.

privilege that consider exists under Article 72.

The Maid's pay should not even be a issue.

Article 47 of the Vienna convention on consular relationship states clearly that the domestic staff working in consulates do not even require a Work Permit, thus excepting them from the labour laws of the host nations. Also the minimum wage laws of the host nation.

As long as the minimum wage of India was satisfied, there is NO legal case.

reply to post by maddy21


You raise some interesting points. Like I said, I don't really have a side that I can take with this and apparently both sides are covering things up to make themselves look more squeaky clean.

reply to post by Krazysh0t


She does not have complete diplomatic immunity, something India seems to be ignoring. She also was not given a body cavity search in the manner they are portraying it.

If I book someone into the jail, the jailer will ask the individual to open their mouth and to move their tongue around to make sure nothing is hidden. There are career criminals who have had plastic surgery in their mouth, where they have had pockets created within the skin to hide keys, etc. Anyways, asking the person to do that actually falls into the category of a body cavity search (only jail staff can perform them).

Is she a career criminal? I would say absolutely not. Should she be treated differently that US citizens? Actually she was in this case. She was afforded way more than what a US citizen would have received.

This revolves around her not paying minimum wage to employees, which is illegal. An Indian Senator weighed in by arguing its not fair to require embassies to provide a minimum wage based on the country.

While people want to invoke diplomatic status they need to read ALL of the protocols involved. While I am not a fan of diplomats flaunting the law, we need to be careful in how we act towards them and make sure all of our ducks are in a row.

It does not help when Indian media / government officials are causing the backlash based on ignorance.

reply to post by Xcathdra


did you just completely ignore my post ? because everything you have written there has been proven wrong ..
She has counselor immunity which prevents her from being arrested unless its a Grave crime . Visa fraud is not a grave crime . This is clearly in violation of the Vienna convention , and that maid is a fugitive which is wanted in India, America is aiding and abetting a fugitive and her family ....

reply to post by maddy21


Because your information is not accurate.

US says won't drop case against Devyani, UN posting won't shield her

India is hoping to end this stand-off, described as the worst between the two countries since 1971, with Khobragade's transfer to India's Permanent Mission to the UN.

It will bring her full diplomatic immunity, which she didn't enjoy as an official at India's consulate in New York, and will thus protect her from prosecution.


But the US doesn't quite see it that way.

"If there's a change in immunity, because of a different diplomatic status, that immunity would start on the date it's conferred," said state department spokesperson Marie Harf.

India had said that this move would give her the necessary diplomatic immunity. Harf, however, said this immunity would not be retroactive.

They are yet to receive any request from the Indian government with regard to transfer of Khobragade to India's Permanent Mission to the UN, she said.

"Generally speaking, if there's a change in immunity, because of a different diplomatic status, that immunity would start on the date it's conferred, after the process," she added.

"So there's a process: it goes to the UN Secretariat, comes to the US state department, everybody has to say yes. There's a process, a bureaucratic process. And then, if a different diplomatic status is conferred, it?s conferred at that date."

India has stated her diplomatic status did not grant her immunity. Hence the move to try and name her to the UN position. As is pointed out in the article a country cannot make someone a diplomat to prevent legal action. Secondly the host nation must accept the appointment for it to take effect. I don't see that happening the way things currently are.

She holds a Visa status of G-1
US State Department - Consular / Diplomatic information


Visa levels go from "A" status all the way to "S" status. Full diplomatic status are "A" level Visa's.

A

A-1 VISA (Diplomatic Visas: Ambassadors, public ministers, carerr diplomatic/consular officers)

Diplomatic visa eligibility - 22 C.F.R. § 41.26: Heads of State; Royal Family; Governor Generals; Cabinet Members; Justices of Highest Court; Presiding Members of Legislatures; Ambassadors; Military at or above rank of Brigadier General Military Attache; G-4 Visa Holders if Secretary General of United Nations; other U.N. official or officer on a diplomatic mission; and all immediate family members of those listed above.

3 Categories of A: [A-1]: Ambassadors, public ministers, or career diplomats/officers; [A-2]: Other accredited officials and employees of foregin governments; [A-3]: Attendants, servants, personal employees.

Section 222(g) regarding overstays is inapplicable to A-1 or A-2 visa holders.

Her G level Visa - (Diplomatic Immunity (non A / limited) usually only applies in the performance of their duties. She was picking children up - not an official action = no immunity. She also violated the Geneva Convention / diplomatic protocols / State and Federal law for the wage issue, which is clearly spelled out on how that type of employment work's.

G VISA (International Organizations)

G-1 Visas: (1) Principal resident reprsentative, family and staff (of any rank, including clerical and custodial employees, so long as they are assigned on a "resident basis."); (2) Foreign governement has de jure recognition; (3) International organization listed (e.g., IMF, U.N., OAS, OAU); (4) Only subject to certain security grounds of inadmissibility; (5) G-1 to G-4 duration of status so long as U.S. DOS recognizes credentials.

G-2 Visas: (1) Other accredited representatives and immediate family; (2) Personnel of any rank or temporary delegation

G-3 Visas: (1) G-1/G-2 from government without de jure recognition from U.S.; (2) Nonmember country of international organization

G-4 Visas: (1) Officers & employees of international organization and immediate family; (2) special expedtious treatment to U.N. reps. because United States host country; (2) sons & daughters, widows and retirees in G-4 status can be special immigrants.

G-5 Visas: Attendants, servants, and personal employees of G-1 to G-4's.

Employment is generally not available but may be authorized for certain G categories.

United Nations
US State Department - Personal Employees

•Minimum Wage. The contract must state the hourly wage to be paid to the domestic employee. The rate must be the greater of the minimum wage under U.S. Federal and state law, or the prevailing wage for all working hours. Information on the prevailing wage statistics by occupation and metropolitan area is available on the Department of Labor's Online Wage Library & Data Center website.
The contract must state that wages will be paid to the domestic employee either weekly or biweekly. As of March 2011, the Department determined that no deductions are allowed for lodging, medical care, medical insurance, or travel. As of April 2012, deductions taken for meals are also no longer allowed.

State Department - Diplomatic and Consular Immunity Guidelines (.PDF Link)
Diplomatic and Consular Immunity - US State Department - Resource for Law Enforcement and Judicial Authorities

It should be emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their government.(pg 8 of PDF)

Finally, even A level Visa holders can actually be detained by Law Enforcement. It prohibits us from placing them in handcuffs / violating their person / property / diplomatic vehicle. The protocol for that type of detention will automatically go up the chain to the State Department.

Any time a foreign national is arrested their Embassy has to be contacted and informed of the issues. The embassy function at the point is to ensure their citizen has full access to the legal system and is being treated within the law. They will have limited access to criminal investigation files / extremely limited ability to be present during an investigation (crime scenes etc.)

In those high level cases (A status) the citizens country must waive the immunity for prosecution to occur. She does not hold diplomatic immunity in that regard.

Respectfully

[

To the people who are saying the US was right in doing this.


Think if it was the other way and a US diplomat was detained in India for breaking a local law.

Would you be ok with that?

Do you think the USA would not get all indignat and start frothing at the mouth for there diplomat to be released with a apology? Im betting they would.


So quit with the double standards.

crazyewok
Think if it was the other way and a US diplomat was detained in India for breaking a local law.

Would you be ok with that?

I absolutely would and no the US would not flip a fit -

May 2013 - Moscow
US diplomat ordered to leave Russia in spy case

MOSCOW (AP) — A U.S. diplomat was ordered Tuesday to leave the country after the Kremlin's security services said he tried to recruit a Russian agent, and they displayed tradecraft tools that seemed straight from a cheap spy thriller: wigs, packets of cash, a knife, map and compass, and a letter promising millions for "long-term cooperation."

The FSB, the successor agency to the Soviet-era KGB, identified the diplomat as Ryan Fogle, a third secretary at the U.S. Embassy in Moscow, detaining him briefly overnight.

It alleged that Fogle was a CIA officer trying to recruit a Russian counterterrorism officer who specializes in the volatile Caucasus region in southern Russia, where the two Boston Marathon bombing suspects had their ethnic roots.

Fogle was handed over to U.S. Embassy officials, declared persona non grata and ordered to leave Russia immediately. He has diplomatic immunity, which protects him from arrest.

A Russian diplomat was arrested in the Netherlands in the last year for child abuse allegations. As has been stated, Diplomatic Immunity is not as absolute as people think it is.

reply to post by Xcathdra


Yea, the OP says pretty much all that. While it doesn't get into details about how the body cavity search was performed, it definitely mentions that she WASN'T arrested in front of her children, and the body cavity search (which is standard procedure for everyone arrested) was performed by a woman in an isolated room. But like I said, both sides are hiding or distorting things to make themselves look better by comparison.

reply to post by crazyewok


how is it a double standard exactly? i mean when have you last seen americans making a big deal over other american diplomats being arrested? if one of our countrymen commits a crime elsewhere then they should be dealt with properly. don't go painting us all like we are idiots who contradict ourselves over everything, who expect special treatment and doesn't want to see the truth or understand facts presented.
personally i want things like diplomatic immunity thrown away, i don't see why diplomats deserve special treatment, if they commit crimes they should be punished properly.

Why are we still talking about this? She clearly broke the law. Used to treat their employees like animals, is understandable that they cannot see what's wrong in all this issue. But the below quote states it clearly for all who want to understand and got the brain to do so:

As of March 2011, the Department determined that no deductions are allowed for lodging, medical care, medical insurance, or travel. As of April 2012, deductions taken for meals are also no longer allowed.

End of the story!!!

Wiki - Diplomatic Immunity
The chart below gives a rundown, in general, on who can and cannot be arrested. The sources are linked at the bottom of the page for those wanting to do some more research.

Her classification falls under the bottom category.

Telos
Why are we still talking about this? She clearly broke the law. Used to treat their employees like animals, is understandable that they cannot see what's wrong in all this issue. But the below quote states it clearly for all who want to understand and got the brain to do so:

As of March 2011, the Department determined that no deductions are allowed for lodging, medical care, medical insurance, or travel. As of April 2012, deductions taken for meals are also no longer allowed.

End of the story!!!

If I remember right those changes came on the heels of Russian Diplomats assigned to the US had been abusing those deductions.

Sooooo the poor,abused"nearly raped"Indian diplomat turns out to be practicing slavery and was treated by the book.I of course knew there had to be much more to this story as the US doesn't abuse diplomats.

reply to post by Telos


We are talking about this because there is a lot of misinformation on both sides and we are trying to wade through it. If that annoys you, you are more than welcome to not comment in this thread anymore.

personally, because of the caste system in India, this "jr. grade woman diplomat" has probably treated servants like crap for a long time and seems to be acting like a royal bitch. if she is so astute at diplomacy, at the first sign of any US concern that was brought to her attention, she should have apologized to the representative of the US, and graciously acknowledged that the problem would be immediately taken care of. someone stood up to her, and now she's pissed.... I see no reason for India to ever employ her in any diplomatic situation again.

namehere
....personally i want things like diplomatic immunity thrown away, i don't see why diplomats deserve special treatment, if they commit crimes they should be punished properly.

Diplomatic Immunity was never intended to be used to shield illegal actions taken by official representatives of a foreign country.

People (in general and not aimed at you) need to understand that Diplomatic staff are not acting in the capacity as an individual. They are acting in the capacity of representing their nation. When the President travels to a foreign country he does so as the President of the United States and not as Barak Obama the individual.

Having a diplomat break the law in a foreign country is embarrassing because it means the country they represent broke the law. They are their country when it comes to Diplomats. The Geneva convention agreements were intended to allow nations to continue speaking to each other, even during times of war. It was never designed to act as a shield to the extent people make it out to be.

There are many cases from all over the earth where ambassadors / diplomats have been arrested / charged with crimes.

I am curious to see if this administration understands the law. By that I mean I want to see if this administration is going to interfere with a federal prosecutor's investigatory / prosecutorial authority.

jimmyx
.......... I see no reason for India to ever employ her in any diplomatic situation again.

Last I read she was in their Embassy / Diplomatic building in New York.

Essentially, and if the info is accurate, just became the Julian Assange of India. She does not have full immunity and leaving the embassy area will be problematic. Even more so trying to get her onto an aircraft.

India is attempting to make the same, and flawed, argument about just granting her full diplomatic status that people made with Julian Assange. Its not as simple as just changing paperwork. The host country must agree to it. Otherwise there is no immunity / status change.