U.S. Diplomacy: 1793 v. 2014

First, a brief recollection of an infamous early event in U.S. diplomatic history. In 1793, while William Short and Gouverneur Morris were negotiating in France and Spain, across the Atlantic the (mis)behaviors of one Edmond-Charles Genêt were besetting the new American republic at home. According to Encyclopedia Britannica, France’s representative in the U.S.:

….soon exceeded his diplomatic authority. Hailed as “Citizen Genêt” by Americans who favoured the French cause, he conspired with those who opposed Pres. George Washington’s policy of neutrality. (See Citizen Genêt Affair.) His efforts to bring the United States into the war [France was fighting against Great Britain] and his high-handed arming of privateers in American ports to operate against the British brought relations between the United States and France to the brink of war and risked the loss of France’s sole source of credit abroad. In August 1793 Washington, who was firmly committed to a policy of neutrality in the European conflict, requested that Genêt be recalled. Realizing that he faced arrest [due to shifting revolutionary power struggles] if he returned to France, Genêt chose to remain in the United States; he married the daughter of George Clinton, governor of New York, became a U.S. citizen, and settled down to farming.

Fast forward to our 2014. The Guardian:

An Indian diplomat was re-indicted Friday on US visa fraud charges that touched off an international stir after she was arrested and strip-searched last year….

Perhaps worth noting: that diplomat, one Devyani Khobragade, India’s then deputy consul general in New York, did not even try to involve the U.S. in a war either.

….The episode roiled US-Indian relations, with India taking such steps as removing concrete traffic barriers around the US embassy and revoking diplomats’ ID cards. After being indicted, Khobragade complied with a Department of State request to leave the US, and the Indian government then asked Washington to withdraw a diplomat from the US embassy in New Delhi. The US complied….

Which is where matters realistically should have been allowed to rest. As with Genêt’s seriously overstepping diplomatic bounds, diplomats have always been ejected for real, or trumped up, reasons. One would have expected roughly this chain of events in reaction to Khobragade’s alleged actions: she is expelled from the U.S.; the U.S. pays a small price in kind so India can save face; behind the scenes discussions are held emphasizing that we all – Americans and Indians – don’t want this endangering relations, and don’t want something like this occurring again; and everyone agrees to move on.

Matters did not take that course. Federal domestic U.S. prosecutors secure a re-indictment of that now deported Indian diplomat. She is vociferously defended by the government of India, so will in all likelihood never set foot in the U.S. ever again because India will almost certainly never hand her over to the U.S. to face that re-indictment in court anyway.

Nevertheless, in Washington, State Department spokesperson Marie Harf stated on Friday that the department had opposed dismissing the charges:

“….Our position regarding immunity, that the U.S. Government took in the brief opposing the motion to dismiss, was that she had full immunity only for a very brief period, a day….”

Yet in the wake of her arrest and “strip search,” we also saw a State Department scrambling to contain the diplomatic fallout. Secretary of State John Kerry expressed “regret” at Khobragade’s treatment in custody. Shortly after that, we heard the same Ms. Harf explain the department wished India to understand it was “an isolated episode,” and that the U.S.-India relationship “….is an incredibly important relationship. That has in no way changed.”

However, Indian officialdom appeared to feel decidedly otherwise. And this re-indictment in March merely re-fans the flames. So State officials may soon revert to fretting publicly as they had initially in December.

We know already of diplomatic headaches arising from non-U.S. citizens facing the death penalty in U.S. local jurisdictions that appear indifferent to “international law.” In this case, the damage the federal Justice Department’s ongoing pursuit of Khobragade is doing to what had been increasingly warm U.S. relations with India appears considerable. Evidently uneasy about that, referring to the case’s top Manhattan prosecutor (an India-born immigrant to the U.S.), one foreign service professional is anonymously quoted as saying, “….he’s not the one who will be serving in missions in India.”

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Indeed currently the U.S. is up to its eyeballs internationally. With Russia annexing Crimea and its intentions toward the rest of Ukraine unclear, the Syrian civil war raging, Iranian nuclear ambitions, North Korea’s intermittent sabre-rattling, China threatening Japan, and innumerable other global challenges, India – “the world’s largest democracy” and an important U.S. trading partner – is an invaluable friend to have. But what had been a slowly healing diplomatic wound has had its scab ripped off, and with Khobragade’s re-indictment obviously re-infuriating the Indian government that wound is unlikely to heal fully anytime soon.

Even if Khobragade was not (and is not) immune from U.S. prosecution for her alleged crimes in the U.S., noticeably lacking has been a visible U.S. exercise of wider good judgment about how to deal with her without poking India repeatedly in the eye. Instead India is lectured highhandedly by domestic U.S. law enforcement about how she “was treated no differently than others who are arrested,” and even supposedly received “courtesies” – when, as a diplomat, and even if not immune, she was definitely not like “others.” Worst of all, we see the prestigious State Department, whose first secretary was Thomas Jefferson, and which is tasked with spearheading U.S. diplomacy around the world, essentially finding itself suddenly relegated to the tail of the Justice Department’s domestic prosecutorial kite.

In long ago 1793, the U.S. federal government was not even five years old and the State Department was similarly brand new. Consisting then of Attorney General Edmund Randolph and a few clerks, the “Justice Department” as we now understand it did not really exist. Had it, the U.S. might well have ended up at war with Genêt’s France.

Consular Access? Uh, Maybe….

Americans’ reactions to Amanda Knox‘s treatment in the Italian justice system are often intriguing. Some seem to feel she is an “innocent abroad” Italian prosecutors have decided to persecute despite there being “no evidence” of her guilt. Others appear to think she is a victim of a foreign miscarriage of justice.

Italians “targeting” her – from among thousands of other U.S. students in Italy each year – hardly seems credible. As for a “foreign miscarriage of justice”? U.S. official responses to her arrest, trial and conviction undermine that contention also.

The U.S. Embassy in Rome was notified by Italian authorities within hours of her arrest in November 2007, and she was subsequently visited in jail regularly by American consular officers. U.S. officials kept an eye on her murder trial and visited her in prison after her conviction. Throughout, the U.S. appears never to have lodged any complaints with the Italian government about a “biased” or “shoddy” prosecution.

Interestingly, commiserating with Ms. Knox’s plight, Tony Renzo, a 23 year old Italian who had participated in a semester-abroad program in the USA, recently told USA Today:

“This story is like a nightmare for students abroad,” … “It’s so frightening to think about getting arrested in a foreign country.”

Mr. Renzo makes an excellent point there perhaps inadvertently. Objectively it could be extremely “frightening” to be a foreign national arrested…. in some states in the U.S. Due to the U.S. federal system, “international law” is often of no concern to state-level officials. CNN:

….Edgar Tamayo Arias, a Mexican national, was executed at 9:32 p.m. [January 22] CT, the Texas Department of Criminal Justice said….

The Mexican government had vehemently protested his pending execution, asserting that he, as a Mexican national, had been denied access to Mexican consular help. CNN continues:

….The Bush and Obama administrations had urged Texas and other states to grant Tamayo and inmates in similar situations new hearings, fearing repercussions for Americans arrested overseas.

U.S. Secretary of State John Kerry has also weighed in on Tamayo’s case, arguing that setting an execution date is “extremely detrimental to the interests of the United States.”

“I want to be clear: I have no reason to doubt the facts of Mr. Tamayo’s conviction, and as a former prosecutor, I have no sympathy for anyone who would murder a police officer,” Kerry wrote. “This is a process issue I am raising because it could impact the way American citizens are treated in other countries.”

That “process issue” evidently matters not at all to the state of Texas:

Lucy Nashed, a spokeswoman for Texas Gov. Rick Perry, said the state was committed to enforcing its laws.

“It doesn’t matter where you’re from — if you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty,” she said.

However, as Secretary Kerry noted, Tamayo’s guilt was accepted; the issue was the question of disregarding the process agreed under “international law,” and in doing so creating difficulties reciprocally for Americans arrested abroad. Meaning is the U.S. upholding its end of the 1963 Vienna Convention, which the U.S. ratified, and allows U.S. diplomats to visit Americans who are arrested overseas?

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It is easy to imagine the indignant rhetoric that would have come flying from the Texas governor’s office if Ms. Knox had been a Texan and Italian authorities in Perugia had denied her U.S. consular help. Yet given that Texans do travel outside of the U.S., we may hear some for real someday regarding someone else, because with that execution the state of Texas may have just made life a little tougher for U.S. citizens abroad like Amanda Knox. It will become harder for the U.S. to argue it is entitled to consular access to its arrested nationals abroad when certain U.S. domestic jurisdictions choose to wave aside that reciprocal right to access when it comes to someone else’s.