Manhattan DA Wants Diplomatic Immunity For UN German Diplomat Revoked

Posted: 12:25 am ET
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A diplomat from the Permanent Mission of Germany to the United Nations in New York is accused of punching his wife but is shielded from arrest by diplomatic immunity according to media reports. NYPost says that Manhattan District Attorney Cyrus Vance Jr. wants the diplomatic immunity revoked for the German diplomat.  State Department representatives have reportedly declined to discus the specifics of the case, except to say that the agency is “aware and concerned” of the incident — and that if Germany declines to waive immunity, they can require that the diplomat leave the US. See more below:

Via NYPost:

An NYPD spokesperson said that there is no situation in which it is acceptable for an officer to apprehend someone with diplomatic immunity.

The mayor’s office has urged her to go to a shelter for domestic violence victims, said Johnson, who is resistant of the idea.

“Other than a shelter, I don’t have any other options and I’m not willing to go to a shelter,” she said. “I don’t think I’m made for that stuff. All my life, my husband has been providing for me. He has been keeping me secure. So I don’t really know the world outside.”

Johnson, a native of Pakistan who does not work, met Haubrichs in her homeland when he was working in the German embassy there.
[…]

But she still loves her man and doesn’t want any consequences to rain down on him.  “I’m concerned for him. I don’t want him to lose his job or his title,” Johnson said. “I do want to have a respected life — of course, nothing like this — but I love him very much, I don’t want to compromise his career or position.”
[…]
“He’s a very caring person. It’s just sometimes the anger gets out of hand and things happen,” she said.

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High Drama in Hungary Awaits New American Ambassador

— Domani Spero
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This past October, the U.S. Embassy in Hungary released the following statement:

The U.S. Embassy is not aware of any NAV investigations into US businesses or institutions in Hungary and no U.S. actions have been taken as the result of any such investigations.

The U.S. takes corruption seriously.  The U.S. Department of Justice has established an anti-kleptocracy unit to expand capacity to pursue cases in which ill-gotten wealth overseas is found to have a U.S. connection.

Certain Hungarian individuals have been found ineligible to enter the United States as the result of credible information that those individuals are either engaging in or benefiting from corruption.  This was a decision by the Department of State under the authority of Presidential Proclamation Number 7750 and its Anti-Kleptocracy Provision of January 12, 2004.  Criminal proceedings are up to the host nation to pursue.  U.S. privacy laws prohibit us from disclosing the names of the individuals involved.

No one is above the law.  The United States shares Hungary’s view of “zero tolerance” of corruption.  Addressing corruption requires a healthy system of checks, balances and transparency.  The U.S. Government action related to Hungarian individuals is not a Hungary-specific measure, but part of an intensified U.S. focus on combating corruption, a fundamental obstacle to good governance, transparency and democratic values.

The Budapest Beacon reported that ten Hungarian officials and associates have been banned for travel to the United States including individuals close to Prime Minister Viktor Orbán. Yup, the same one Senator McCain called   a “neo-fascist dictator.  And the reason Chargé d’Affaires André Goodfriend, our acting ambassador at the U.S. Embassy in Budapest was summoned to Hungary’s Foreign Ministry.

Last month, Hungary Today citing reports from Portfolio.hu has reported, said that the head of National Tax and Customs Administration of Hungary (NAV), Ildikó Vida had revealed that she and some of her colleagues are among those state officials that were banned by Washington from travelling to the United States.

 

 

Orbán also criticized Goodfriend for accusing a government official of corruption “while hiding behind diplomatic immunity”. Orbán called on Goodfriend to “be a man and take responsibility for his accusations” by agreeing to allow himself to be sued in a Hungarian court for defamation.

“In Hungary, if someone is proven to have been involved in corruption, we don’t replace that person but lock them up,” said the prime minister, neglecting to mention the fact that a similar fate awaits people convicted of defaming public officials.

Later in the day the head of the Fidesz caucus, Antal Rogán, an authority on corruption, told the Hungarian News Service that Goodfriend could prove to a Hungarian court of law if Vida was guilty of corruption, “but that this would first involve the US agreeing to lift his diplomatic immunity”.

Right and she did not want to be fired. As can be expected, the tax office (NAV) chief Ildikó Vida filed a defamation lawsuit against US embassy chargé d’affaires André Goodfriend.  According to Hungary Today, the complaint was filed with the prosecutor’s investigations office on the ground of “public defamation causing serious damage,” a NAV lawyer said.

 

 

The Financial Review notes that growing anti-government protests in the country may become another battleground between Europe and Russia.  Several protests in the last few months over corruption, internet tax plan, private pensions, etcetera.  The Review suggests that these protests against an  increasingly pro-Russian leadership, raised questions about whether the former communist nation could become the next Ukraine.

Amidst this, the U.S. Senate confirmed President Obama’s nominee to be ambassador to Hungary, and The Colbert Report noticed.

 

Mr. Colbert notes that “The Bold And The Beautiful is perfect training to be an ambassador. Hungary is a region rife with drama and constant threat of violence — exactly the situation the Forrester family routinely handles from their palatial estate while simultaneously running their fashion empire.”

As if that’s not enough, there are also some suggestions floating around the net on how Viktor Orbán can best use the Colleen Bell fiasco to screw the US and its liberal allies in Hungary. It includes wining and dining, and those are the nicer parts.

Meanwhile, @GoodfriendMA is going about his business, checking out the Christmas markets in Budapest and awaiting the arrival of his new boss.

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US Embassy New Delhi RSO Wayne May Given 48 Hours to Leave India Over L’Affaire Khobragade

— Domani Spero

On January 9, a grand jury indicted Indian diplomat, Devyani Khobragade for visa fraud and for false statements.  Around the same time, Washington granted the Indian diplomat accreditation to the Indian Mission to the United Nations and requested that India waive the immunity that her new status conferred.   After India refused, Washington reportedly asked for Ms. Khobragade’s departure from the United States.  By Friday evening, the Indian diplomat was back in New Delhi, embraced as a returning hero. Mayur Borkar, the spokesman of the Republican Party of India is quoted by Reuters saying,  “We will be meeting her soon. She is an inspiration to the people of our country.” 

The State Department spokesperson Jen Psaki says that the charges remain in place and that Ms. Khobragade is not permitted to return to the United States “except to submit to the jurisdiction of the court.”

“[T]he charges against her have not changed. Once she departed – prior to her departure it was conveyed to her and to the Government of India that she is not permitted to return to the United States except to submit to the jurisdiction of the court. Her name would be placed in visa and immigration lookout systems to prevent the routine issuance of any future visa, and upon her departure, a warrant may be issued for her arrest. This does not change the charges. The charges remain in place.”

Ms. Psaki also confirmed the Government of India’s request for the withdrawal of a specific individual from the U.S. Mission in India. Note that both sides are using the polite term “withdrawal” or “expulsion” and did not make a declaration of “persona non grata” for either individual.

“I can confirm that a U.S. official accredited to the Mission India – to Mission India will be leaving post at the request of the Government of India. We deeply regret that the Indian Government felt it was necessary to expel one of our diplomatic personnel. This has clearly been a challenging time in the U.S.-India relationship. We expect and hope that this will now come to closure and the Indians will now take significant steps with us to improve our relationship and return it to a more constructive place. I don’t have any other specific details in terms of the individual and the name of the individual or their specific travel plans at this point.”

Reciprocity also known as equivalent retaliation is the diplomatic version of a stick fight. Nobody dies or the game ends, but no blow goes unreturned, regardless of who is right or wrong.

Screen Shot 2014-01-10

(Click on image to read the text of the daily press brief with Ms. Psaki)

We‘ve learned yesterday from our State Department sources that the member of US Mission India who was asked to depart within 48 hours according to news report is Regional Security Officer and Supervisory Special Agent Wayne May. His wife who works at the embassy as a Community Liaison Officer will presumably also leave.  Mr. May has now departed the country according to the Times of India.  On local media, he is alleged as either having issued the visas or alleged to have facilitated the travel to the United States of Sangeeta Richard’s family. The Times of India is reporting a direct connection between RSO Wayne May and the family of the Kohbragade maid.

The parents-in-law of Sangeeta Richard, the domestic help at the centre of the India-US diplomatic spat, worked with US diplomat Wayne May who was expelled by India for his role in the Devyani Khobragade episode. This seems to be the main reason why May is said to have gone out of his way to facilitate the “evacuation” of Sangeeta’s husband Philip and children by arranging T-visas (trafficking) for them.

We don’t know much of the the specifics of this case except through the USDOJ posted documents. We do know this — Mr. May is a member of the Bureau of Diplomatic Security, the law enforcement arm of the US Department of State.  As an RSO, his responsibility includes security,  investigations and threat analysis overseas.  We estimate that he manage about a quarter of the embassy staff in New Delhi.  Since the Khobragade case was a criminal investigation, we doubt very much if Mr. May just woke up one day and decided on his own to piss off the host country by doing whatever he did. Or did not do.  As far as we know, Mr. May is not a consular officer who issues visas nor a travel agent who process airline tickets. But apparently, he is the “it” person in this multi-phase diplomatic rat-tat-tat over a diplomat who allegedly underpaid her maid and was strip searched during her arrest.

It is  our understanding that Mr. May has been the RSO in New Delhi since 2010.  So yeah, he is already due for a regular rotation.

Now, the big question is — who will the GOI demand to leave next, the fingerprint lady on Window #6?

Today, it is widely reported on Indian media that India is also insisting that the US should drop the charges of visa fraud against its diplomat as she was not guilty of any wrongdoing according to External Affairs Minister Salman Khurshid. That indictment could actually be more problematic for the GOI.  Besides its missions in Washington, D.C. and New York, India has consulates general in San Francisco, Chicago, Houston and Atlanta. The minimum wages for those locations are as follows: California-$8.00 per hour; becomes $9.00 on July 1, 2014 (San Francisco minimum wage is higher at $10.55 per hour); Illinois-$8.25 per hour; Texas -$7.25 per hour; Georgia-$5.15 per hour. California’s Domestic Worker Bill of Rights also went into effect on January 1, 2014.  Writing for Hindustan Times, former Indian foreign secretary Kanwal Sibal (via) said this: “Indian diplomats taking domestic staff to the US accept the minimum wage requirement when all concerned, including the US visa services and the State Department, know this is done pro-forma to have the paper work in order.” NDTV reports that Indian diplomats in the US are worried “since their domestic helps also come on A3 visa like Ms Richards.” The report using unnamed sources says that there are “around 14 such ‘ticking time bombs’ in the US right now.”

A side note on the “T” visas for victims of human trafficking and qualifying family members — that’s not something that one office or one person can just issue because the official feel sorry for the applicant.  The “T” visa status is obtained from the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS). One of the eligibility criteria is for an applicant to “Demonstrate that [he/she] would suffer extreme hardship involving unusual and severe harm if removed from the United States.”  Victims of trafficking applicants are also strongly encouraged to submit Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, to show law enforcement agency support.  That declaration, signed by a law enforcement officer and a supervisory officer serves as primary evidence that the applicant is a victim of trafficking and that he/she has complied with reasonable requests from law enforcement. Once USCIS approves the change of status to a “T” visa, the applicant then had to deal with USCIS Vermont Service Center in St. Albans, VT.  to obtain derivative approval for qualifying family members.  Family members overseas then have to apply for their visas at their nearest embassy overseas.

To imagine that all this was orchestrated by one officer, including the investigation in the United States, and the actual filing of charges by the Southern District of New York because the escaped maid’s in-laws work for the officer’s family in New Delhi is simply ludicrous.

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U.S. Grand Jury Indicts Indian Diplomat Devyani Khobragade (See Documents)

— Domani Spero

On January 9, a U.S. Grandy Jury indicted Indian diplomat, Devyani Khobragade for visa fraud (count one) and for false statements (count two). The U.S. Attorney’s Office for the Southern District of New York has now posted copies of the indictment and the exhibits (includes the alleged fake employment contract and alleged real employment contract).

INDICTMENT, EXHIBITS & RELATED LETTER: U.S. v. Devyani Khobragade

A U.S. government official told Reuters that the State Department accepted India’s request to accredit Ms. Khobragade at the Indian Mission to the United Nations and then asked India to waive her diplomatic immunity that the status conferred.  India reportedly denied the request which resulted in Washington asking for Ms. Khobragade’s departure from the United States.

Apparently, one of Ms. Khobragade’s attorneys told CNN late Thursday afternoon that she was still in the United States, but declined to say whether she planned to leave later. The U.S. Attorney’s Office for the Southern District of New York subsequently released the following statement:

“This Office had been advised by the State Department that, pursuant to their request, Devyani Khobragade was to have left the United States this afternoon. In a letter sent to the Court upon the filing of the Indictment of Ms. Khobragade, we stated our understanding that she had left the country. Subsequent to the filing of the letter, Ms. Khobragade’s lawyer advised that she has not, in fact, departed the U.S.”

This may end the contentious U.S.-India row but this is not the end of the case against Ms. Khobragade.  In a filing to the New York court, Manhattan US attorney Preet Bharara writes that “the charges will remain pending until such time as she can be brought to Court to face the charges, either through a waiver of immunity or the defendant’s return to the United States in a non-immune status.”

Pending charges could complicate future plans of visiting or residing in the United States as Ms. Khobragade is reportedly married to a U.S. citizen.

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If True That Foreign Diplomats in the U.S. Are “Eligible” for Medicaid — That’s Absolutely Bonkers!

— Domani Spero

In early December, Preet Bharara, the United States Attorney for the Southern District of New York, and George Venizelos, the Assistant Director-in-Charge of the New York Field Office of the Federal Bureau of Investigation (“FBI”), announced charges against 49 current or former Russian diplomats or spouses of diplomats employed at the Russian Mission in the United States for participating in a widespread fraud scheme from 2004 to August 2013 to illegally obtain nearly
$1.5 million dollars in Medicaid benefits. (See 49 Russian Diplomats/Spouses Charged With Picking Uncle Sam’s Pocket in Medicaid Scam).

On December 6, during the Daily Press Briefing, the State Department deputy spokesperson, Marie Harf said this:

“We routinely inform all foreign missions in the U.S. – most recently we did this in November – that we expect their personnel to maintain health insurance coverage. So under U.S. law, nonimmigrants, which diplomats fall under in this case, who meet certain eligibility criteria may apply for and receive federally funded medical care.”

Whaaat?!

Lest we get all excited, this is the same spokesperson, of course, who could not say what appropriate consular assistance is provided when an American citizen dies abroad.  Or who says from the podium that “It’s not for any State Department official to sign off on any arrests, right, even regarding a foreign diplomat.”  Whoops!  (We heard that the Special Agents of the Diplomatic Security Service toppled over in their swivel chairs when the clip aired on YouTube).

Then on December 14, UPI reported that “Russia’s Foreign Minister Sergei Lavrov said “some of the diplomats accused of glomming on to the U.S. healthcare system were actually entitled to do so.”

Entitled to do so?  As in  a legal right or a just claim to receive it?

On December 16, Interfax also reported that Moscow is “already taking disciplinary measures in relation to the Russian diplomats accused in the U.S. of unlawfully receiving Medicaid benefits to cover the pregnancy and childbirth costs.”

The report quotes Russian Foreign Minister Lavrov saying, “This is a disciplinary offence, because, by being insincere in filing applications and citing inaccurate figures to receive some benefits, they violated the host country’s norms and rules, which a diplomat has no right to do. I’d like to stress once again: they are being subjected and will be subjected to disciplinary action.”  Now, the same report repeats this notion that some of the Russian diplomats were “entitled” to apply for such assistance due to their low income:

“We have looked into this. First, the allegation that none of them was entitled to this because they are foreigners is wrong. There are different laws in various states of the U.S. that allow for using Medicaid benefits by foreigners. Second, it is not quite true that the Russian diplomats’ incomes did not make them eligible for receiving such payments through Medicaid,” he said.

“We have studied the files of the said colleagues, and it turned out that at least some of them had salaries that entitled them to apply for such assistance from the U.S. fund at that moment. 

How bonkers is that?  That American taxpayers are subsidizing the health care cost of foreign diplomats in the United States.  Which part of this makes sense? Medicaid is a federally funded program designed to assist low-income families afford health care. And in this case, if the allegations are true, Russian diplomats took public assistance that would have been  helpful to low income Americans.

The big question now is — can we also call this foreign aid?

Screen Shot 2013-12-26

Extracted from Medicaid Renewal Form
(click image for larger view)

Now Congress wants to know Whiskey Tango Foxtrot is going on here. The SFRC is missing on this but U.S. Rep. Ed Royce (R-CA), Chairman of the House Foreign Affairs Committee, recently expressed “serious concern about foreign diplomats receiving, and reportedly defrauding, U.S. Government-funded benefits programs.” In his letter to Secretary Kerry, Chairman Royce requested a meeting plus written answers to the following questions:

1.      How will the Administration treat the 11 named defendants who, according to the U.S. Attorney, remain in the United States?  Will you ask the Russian government to waive their immunity so that they can be prosecuted?  If not, will the Department declare them persona non grata?

2.      How will the Administration treat the 38 named defendants who, according to the U.S. Attorney, no longer reside in the United States?  Will you request that they be extradited to stand trial?  If not, will the Department impose a U.S. visa ban on them?

3.      How will the Administration treat the unindicted co-conspirators at Russian diplomatic offices in the U.S. who allegedly advised and assisted the named defendants by supplying false documentation to New York officials in support of the fraudulent Medicaid claims?

4.      Will the Administration bill the Russian government for the Medicaid benefits its personnel fraudulently used?  If not, how will New York State’s Medicaid program be compensated for the loss?

5.      On December 5, 2013, Department of State Deputy Spokeswoman Marie Harf said, “We are still…reviewing the charges that were unsealed.”  How closely did the U.S. Attorney, Department of Justice, or Federal Bureau of Investigation cooperate with the Department of State during the investigation?  What steps did the U.S. Attorney take to coordinate with the Department of State before filing the complaint on November 18, 2013 or unsealing it on December 5, 2013?

This situation also raises a number of important questions about government programs that provide benefits to foreign diplomats.  I therefore would appreciate written answers to the following questions not later than January 13, 2014:

6.      On December 6, 2013, Department of State Deputy Spokeswoman Marie Harf stated that foreign diplomats in the United States “who meet certain eligibility criteria may apply for and receive federally funded medical care.”  What are the medical programs for which foreign diplomats may be eligible?  What are the eligibility criteria?  Over the last 10 years, how many foreign diplomats have used these programs?  What was the total cost of the benefits provided?  Please provide these data sorted by foreign diplomatic mission or international organization.

7.      Are foreign diplomats eligible for government-funded benefits other than Medicaid (e.g., Temporary Assistance to Needy Families or the Supplemental Nutrition Assistance Program)?  If so, which programs and what are the eligibility criteria?  Over the last 10 years, how many foreign diplomats have taken advantage of these programs?  What was the total cost of the benefits provided?  Please provide these data sorted by foreign diplomatic mission or international organization.

8.      Is the Administration aware of other cases where foreign diplomats fraudulently or inappropriately obtained Medicaid or other government-funded benefits?  Please provide the details of these cases, including the cost of any benefits that were inappropriately obtained.

9.      What is the Administration doing to ensure that foreign diplomats cannot inappropriately obtain government-funded benefits in the future?  Has the Administration asked relevant government benefit agencies to check their rolls for the names of foreign diplomats?  Does the Department regularly provide a list of foreign diplomats to relevant government benefit agencies?

And — if some foreign diplomats in the United States are “eligible” for Medicaid, how about some of their underpaid domestic workers, are they eligible, too?

Oh, for god’s sakes, maybe the State Department should just publish a handbook of freebies.

 

 

 

 

 

 

Embassy Row’s Dirty Little Secret: Abuse of Migrant Domestic Workers by Diplomats

— Domani Spero

The logic behind a restrictive interpretation of functional immunity is that while a diplomat may be protected from some distractions to aid his purpose, there ought to be no need for him to violate the laws of his host state to do so. As many legal scholars have pointed out, a diplomats behaviour in his host country is best described by the Arabic proverb, يا غريب خليك أديب (ya ghareeb, khalleek adeeb) – O stranger, be thou courteous. — Jaideep Prabhu 

Back when ….

In 2007, the Department of State reported that some foreign diplomats may be abusing the household workers they brought to the United States on A-3 or G-5 visas.  A subsequent Government Accountability Office (GAO) report the following year revealed that 42 household workers with A-3 or G-5 visas alleged that they were abused by foreign diplomats with immunity from 2000 through 2008. The GAO believes the total number of alleged incidents since 2000 is likely higher for four reasons: household workers’ fear of contacting law enforcement, nongovernmental organizations’ protection of victim confidentiality, limited information on some cases handled by the U.S. government, and federal agencies’ challenges identifying cases.

Via GAO 2008

Via GAO 2008

Each year, the State Department issues A-3 and G-5 visas to individuals whose employers are foreign diplomats on official purposes in the United States. Most of these individuals are hired to work for foreign diplomats in the District of Columbia, Maryland, New York, or Virginia. According to the 2008 GAO report, for fiscal years 2000 through 2007, 207 U.S. embassies and consular posts overseas issued 10,386 A-3 visas and 7,522 G-5 visas.

Recent State Department statistics indicate that from 2008 through 2012, it issued 5,330 A-3 visas to attendant, servant, or personal employee of A1 visa holders (ambassador, public minister, career diplomat, consul, and immediate family) and A2 visa holders (other foreign government official or employee, and immediate family).  It also issued 4,196 G-5 visas to attendant, servant, or personal employee of G1 through G4 (international organization officials and representatives).  That’s about a 50% decrease on A-3 visas and a 44% decrease in G5 visas issued since 2008. What might have accounted for that huge drop?

How about the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008?  Click here for the laws on trafficking in persons dating back to the year 2000.

In any case — five years ago today, President George W. Bush signed the TVPRA to combat human trafficking. Section 203 of the Trafficking Victims Protection Reauthorization Act of 2008 requires the secretary of state to suspend  the issuance of A–3 visas or G–5 visas to applicants seeking to work for officials of a diplomatic mission or an international organization, if the Secretary determines that there is credible evidence that 1 or more employees of such mission or international organization have abused or exploited 1 or more nonimmigrants holding an A–3 visa or a G–5 visa, and that the diplomatic mission or international organization tolerated such actions.

No secretary of state has ever exercise the authority to suspend any diplomatic mission despite some repeat offenders. For a look at what the State Department has done/not done when it comes to TVPA and domestic employees of foreign diplomats in the United States, read Janie A. Chuang’s critical paper on Achieving Accountability for Migrant Domestic Worker Abuse in the 2010 North Carolina Law Review.  One of the sections talks about the State Department’s “Failure to Use Power to Name, Shame, and Deter Wrongdoers.”

Chief of Mission Accountability

In 2008, the State Department through USUN sent this note verbale on the Treatment of Domestic Workers at UN Missions.

Recently, the host country has learned of a number of allegations of trafficking in persons with respect to domestic workers, including allegations of involuntary servitude and physical abuse. For example, this Mission has periodically been informed of instances where wages actually paid are less than those stipulated in an employment contract; where passports have been withheld from employees; where the actual number of working hours is considerably greater than those initially contemplated and no additional pay is provided; and where an employee is forbidden from leaving an employer’s premises even when off-duty. The United States Mission takes seriously any such allegation brought to its attention and refers these cases, as appropriate, to the United States Department of Justice for review and investigation.  
[…]
The United States Mission also wishes to advise the Permanent Missions that its commitment to fair and reasonable labor conditions is consistent with its commitment to human rights and, further, comports with the practice of other governments and with the requirements imposed by international organizations on their employees who have foreign domestic workers.  Although the United States recognizes that the great majority of diplomats and Mission personnel are law-abiding members of the United Nations community, it is necessary to periodically re-circulate and update information regarding United States laws, regulations and policies regarding the employment of personal domestic servants.
In fact, if you take a look at this archive of diplomatic notes, it is clear that the treatment of domestic employees, their contracts, prevailing wage, pre-notification requirements are recurring subjects.

In a 2009 diplomatic note, the State Department puts the heads of missions on notice that they are generally accountable for the treatment of domestic workers employed by their mission. We presume that this is a recurring reminder that the State Department sends to all diplomatic missions in the United States:

The United States Mission looks to the Permanent Representatives to be responsible for the conduct of the members of their missions and for ensuring that their treatment of domestic workers in their employ evidences respect for all relevant United States laws. In this regard, it is  recommended that the Permanent Mission maintain copies of the signed domestic worker contracts and be able to review such contracts, as well as records of payments made to each domestic worker, in the event that the United States Mission seeks assistance if faced with credible allegations of a mission member’s mistreatment of a domestic worker.

The United States Mission and/or the Department of State refer credible allegations of abuse of domestic workers by mission members which may constitute criminal conduct to the United States Department of Justice. In that context, the United States Mission and the Department of State may take other appropriate action, including, based on the determination by an appropriate prosecuting authority that prosecution is warranted, a request for a waiver of any applicable immunity. Mission members are not only expected to pay the greater of the minimum or prevailing wage and abide by other contract terms, but they should also be aware that in the United States, withholding a person’s passport maybe evidence of the crime of trafficking in persons if it is done with the intent of keeping that person in a state of forced labor or service.

In the Trafficking in Persons Report 2010, the State Department notes the following:
Worldwide, domestic workers employed by diplomats suffer abuses ranging from wage exploitation to trafficking offenses. Diplomats are government officials who serve their governments abroad and are generally able to apply for visas enabling domestic workers – often from third countries – to accompany them on their foreign assignments.
Because domestic servants working for diplomats work behind closed doors – cleaning, cooking, and caring for children – they can become invisible to the neighborhoods and communities they live in. Domestic workers brought into a country by diplomats face potentially greater isolation than other workers because of language and cultural barriers, ignorance of the law, and sheer distance from family and friends. They work for government officials who may appear to them to hold exceptional power and/or influence. The resulting invisibility and isolation of such workers raises concerns about the potential for diplomatic employers to ignore the terms of their employment contracts and to restrict their domestic workers’ freedom of movement and subject them to various abuses. Because diplomats generally enjoy immunity from civil and criminal jurisdiction while on assignment, legal recourse and remedies available to domestic workers in their employ – and the criminal response otherwise available to the host government – are often significantly limited.
And in March 2012, during the Annual Meeting of the President’s Interagency Task Force To Monitor and Combat Trafficking in Persons, then Secretary of State Hillary Clinton said this:

“We thought it was unfair for diplomats who victimized their own domestic workers were, because of diplomatic immunity, virtually untouchable. So now, we’re making sure that diplomats coming to this country understand their obligations and responsibilities, and we’re taking action when we have evidence that they are not.”

No one paid attention then,  but they’re paying attention now.

In the latest diplomatic row between the United States and India, the Times of India provided an unconfirmed timeline of the events.   It indicates that the State Department reportedly wrote to the Indian ambassador in Washington, D.C. on September 4, 2013 expressing “considerable concern” over the allegations.  On September 21, the Indian Embassy reportedly replied, “that this was none of US’ business and that the maid was seeking a monetary settlement and US visa, whereby subverting both Indian and US laws.”

If that timeline is accurate, one has to ask who miscalculated whose response?

 

“This is happening 10 miles from the White House”

– Martina Vandenberg, Human Trafficking Pro Bono Legal Center

Despite the many notable cases of abuse by diplomats ranging from non-payment of wages to sexual assaults, we do not see very often an arrest of a foreign diplomat or international representative in the United States. But following the arrest of  IMF’s Dominique Strauss-Kahn in 2011, Reuters did report the following:

Foreign diplomats have been the subject of at least 11 civil lawsuits and one criminal prosecution related to abuse of domestic workers in the last five years, according to a Reuters review of U.S. federal court records. The allegations range from slave-like work conditions to rape, and the vast majority of the diplomats in these cases avoided prison terms and financial penalties.

We have not been able to locate all civil lawsuits but the cases below are just a sampling of abuse allegations by domestic employees against their foreign diplomat-employers in the United States in the last several years.

Tae Sook PARK v. Bong Kil SHIN (South Korean Consulate/San Francisco) | Tae Sook Park, a domestic servant sued Deputy Consul General Bong Kil Shin of the Korean Consulate in San Francisco.  The Ninth Circuit Court of Appeals reversed a district court decision dismissing Park’s claims of labor law violations. It held that the deputy consul was not entitled to immunity under the Vienna Convention on Consular Relations or the U.S. Foreign Sovereign Immunities Act, and remanded the case back to district court. He later became ambassador.

Swarna v. Al-Awadi (Kuwait Embassy)|  Swarna Vishranthamma took to court her former employers, Badar Al-Awadi and his wife, Halal Muhammad Al-Shaitan and the State of Kuwait in 2009.  At the time of the events in question, Mr. Al-Awadi was a diplomat serving in New York City with the Permanent Mission of the State of Kuwait to the United Nations. According to WaPo,  Kuwaiti government hired a prominent law firm to defend him in the civil case — in court filings, he has denied the allegations — and then later promoted him to be Kuwait’s ambassador to Cuba.

Mildrate Yancho Nchang (Cameroon Embassy) | According to WaPo,  Nchang filed a case against her employers alleging she toiled for three years without pay or a day off and then was hospitalized after being beaten by a Cameroonian diplomat’s wife. She sued in federal court in Maryland, but the case was dismissed in 2006 when the diplomat asserted immunity.

Mazengo v. Mzengi, et.al. (Tanzania Embassy)| In 2007, Ms. Mazengo, a citizen of Tanzania, sued her former employers, defendants Alan S. Mzengi and Stella Mzengi, husband and wife, alleging that they falsely imprisoned her and subjected her to involuntary servitude and forced labor in violation of federal law. Alan S. Mzengi was a diplomat accredited to the embassy of the Republic of Tanzania.  WikiLeaks Alert: See the State-USEmbassy Tanzania demarche on the outstanding restitution for TIP victim, Ms. Zipora Mazengo.

Regina Leo (Kuwaiti Embassy) | In July, 2008, a lawsuit was filed against an attache in the Embassy of Kuwait, Brig. Gen. Ahmed Al Naser, and his family, by their former maid, Regina Leo, an Indian immigrant who alleged that she was forced to work as much as 18 hours per day.

Marichu Suarez Baoana (Philippine Embassy) | According to WaPo, in 2009, Ms. Baoana, a Philippine national sued the Permanent Representative of the Philippines to the United Nations, Lauro L. Baja Jr. alleging she was forced to endure 126-hour workweeks with no pay, performing household chores and caring for the couple’s grandchild.

Daedema Ramos (Kuwait Embassy) | In 2010, the Filipina housekeeper left a Kuwaiti diplomat’s Manhattan duplex where she worked 20 hours a day, earning as little s $500 a month. With help from Damayan, a grassroots organization fighting for the rights of low-wage Filipino migrant workers she escape her employer, and was encouraged to fight back. In July 2012, the diplomat settled with her after she demanded unpaid wages.

Sophia Kiwanuka (World Bank) | According to Reuters, World Bank economist, Anne Margreth Bakilana, hired a Tanzanian woman, Sophia Kiwanuka, to work in her home in Falls Church, Virginia, and improperly withheld Kiwanuka’s wages and threatened to send her back to Tanzania, according to court records. She pleaded guilty in 2010 and was sentenced to two years probation and fined $9,400.

Bhardwaj v. Dayal et al (Indian Embassy) |  In 2011, Indian national Santosh Bhardwaj filed a lawsuit against Indian Consul General Prabhu Dayal for allegedly intimidating her into a year of forced labor, where she was subjected to 105-hour workweeks for $300 per month. According to Indian Express, in December 2012, the Indian Ministry of Finance approved payment of $75,000 from the budget of Ministry of External Affairs to a “former domestic assistant” who had filed a lawsuit against India’s consul-general in New York, Prabhu Dayal. Click here to read an interview with Mr. Dayal in India Today concerning his case and the Khobragade case.

Araceli Montuya (Lebanon Embassy ) | She filed a lawsuit against  her former employer, the Lebanese Ambassador Antoine Chedid. On April 2011, U.S. District Judge James Boasberg in Washington threw out a case in which Montuya alleged that Chedid and his wife underpaid and verbally abused her.

Four former cooks and housekeepers (Qatar Embassy) |  According to Reuters, on March 2011, four former cooks and housekeepers for Essa Mohammed Al Manai, Qatar’s second-highest ranking diplomat in the United States filed a civil lawsuit alleging they were paid less than 70 cents per hour and “forced to work around the clock” at Al Manai’s six-bedroom home in Bethesda, Maryland. The suit also claimed that one of the women was sexually assaulted. More here.

F.V. (The Taipei Economic and Cultural Office) |  In 2011, Hsien-Hsien “Jacqueline” Liu, 64, of Taiwan, high-ranking representative of Taiwan was charged in federal court with fraud in foreign labor contracting for fraudulently obtaining a Filipino servant for her residence. Liu paid the Filipino worker $400-450 per month, although the employment contract stipulated a salary of $1,240 per month. Liu allegedly required the victim to work six days a week, 16 to 18 hours a day, and forbid her to leave the house without permission. (See Taiwanese Official in Kansas Charged for “Fraudulently Obtaining a Filipino Servant”).  Liu was arrested by the FBI on Nov. 10, 2011 and was detained for two months before entering a plea agreement. She eventually entered a plea agreement and was ordered to pay US$80,044 in restitution to the two maids. According to the Taipei Times, in 2012, Liu was suspended from her duties for two years for “seriously damaging the country’s reputation.”

Gurung v. Mahotra (Indian Embassy) | In 2012, a New York City Magistrate Judge  ordered Neena Malhotra, an Indian diplomat and her husband Jogesh to pay nearly $1.5 million reportedly arising from their employment of an Indian girl, Shanti Gurung who alleged “barbaric treatment” while she was employed as their domestic worker.

C.V. (Mauritius Embassy) | According to The Record, in 2012, Somuth Soborun, the Republic of Mauritius’ ambassador to the US pleaded guilty to the misdemeanor offense in September, admitting that he failed to properly pay a domestic worker minimum hourly and overtime wages between December 2008 and August 2009. He was fined $5,000.  As part of his plea agreement, Soborun has already paid $24,153 in restitution to the domestic worker, who was identified in court papers only by the initials C.V.

Kumari Sabbithi, Joaquina Quadros and Tina Fernandes (Kuwaiti Embassy) | In 2012, the ACLU represented three Indian women who were employed as domestic workers by Major Waleed Al Saleh and his wife Maysaa Al Omar of McLean, Virginia.  The complaint alleged that they were brought to the U.S. in the summer of 2005 and that they were forced to work every day from 6:30 a.m. until sometimes as late as 1:30 a.m. for approximately $250 to $350 a month. The complaint further alleged that they were subjected to threats and verbal and physical abuse, including one incident in which Al Saleh threw one of the women, Sabbithi, against a kitchen table, knocking her unconscious. The Kuwaiti government agreed to settle the case brought by three women who claimed that they were trafficked to the United States by a Kuwaiti diplomat and his wife.

USA v. Devyani Khobragade |  In December 2013, the Indian Deputy Consul General Arrested For Visa Fraud and False Statements Related to Domestic Worker

The  reported abuse of migrant domestic workers by diplomats and the staff of international organizations typically include wages and hour violations, passport deprivation, denial of the workers’ right to leave the house or premises in which they work, physical, sexual and emotional abuse and invasion of privacy, where domestic workers often have their rooms searched, their mail opened, and are not allowed to make private phone calls.  For additional reading, see  Joy M. Zarembka’s Global Woman: Nannies, Maids, and Sex Workers in the New Economy,which details the plight of some of the domestic workers brought to the U.S. by employees of international organizations.

Maid in Manhattan Case: U.S. Attorney Preet Bharara, the Man Who Makes Embassy Row Tremble

We suspect that nowhere is the  Khobragade Affair watched more closely than in the United Nations in New York and in the Embassy Row (the informal name for the streets and area of Washington, D.C. in which embassies, diplomatic missions, and other diplomatic representations are concentrated).  Besides India, that is.  To avoid possible “misunderstanding,” the State Department has recommended that diplomats keep employment records of their domestic workers including work hours and payment, records that should be maintained for the duration of actual employment of domestic employees plus three years.  Would be interesting to see how many diplomatic missions in the United States actually take this recommendation seriously.

In an interview with India Today published on December 23, the former Indian Consul General Prabhu Dayal who was taken to court by his former housekeeper in New York said that “in our consulates in the US, there is a lot of fear today.”

“India’s view has been that the domestic assistants of our diplomats hold Official Passports and should be outside the purview of US labour laws. The US side has not agreed to this, insisting that US laws apply to them. This impasse continues.[…] even if were were to revamp our system relating to domestic assistants, we will not be able to guarantee that our officials in our Consulates will not be arrested or dragged into law courts for some  reason or another in future. The US is a highly litigious country where suing people is a sort of favourite past time. […] There is no doubt, however that our officers posted at the Consulate in New York have begun to feel very insecure after all these recent cases, and the same may also be true for the other Consulates in Chicago, San Francisco, Houston and Atlanta. How will India protect its diplomats posted to the Consulates given the US position on immunity?”

But perhaps the more telling parts during this incident is the on the record statement made by a senior Indian official quoted by the Times of India below:
“Which Indian would pay a help Rs 6500 ($ 100) a day?” asked Shakti Sinha, a former principal secretary in the government of India who did various stints abroad, including at the World Bank and various UN agencies, assuming eight normal working hours.

FirstPost.com reports  on India’s former foreign secretary Kanwal Sibal’s opinion on this matter, quoting the former official as saying:

“There is much chicanery involved here. Indian diplomats taking domestic staff to the US accept the minimum wage requirement when all concerned, including the US visa services and the State Department, know this is done pro-forma to have the paper work in order. To imagine that the US authorities are duped into believing that our diplomats will pay their domestic staff more than what they earn is absurd. The US authorities have been clearing such visas for years to practically resolve the contradiction between reality and the letter of the law.”

And that’s probably why “there is a lot of fear today.”

Apparently, according to NYT, there are 14 other Indian maids working for Indian diplomats in the United States, and “India is negotiating over their status with the State Department.”  If a Deputy Consul General could be hauled to jail for underpaying her domestic employee, who could Preet Bharara go after next?

Dirty Laundry Gets Washed

The State Department’s TIP 2012 report says that “U.S. government employees, their dependents, and members of their households do not have immunity in the U.S. domestic legal framework for acts of human trafficking associated with domestic staff occurring at overseas postings. Any such reports will be fully investigated by Diplomatic Security and/or the Office of the Inspector General and, where appropriate, may result in either an administrative penalty and/or referral to the Department of Justice for criminal prosecution. These measures apply to Department of State employees overseas as well as their dependents and other members of household.”

It’s not an accident that the above item was included in the report.  The State Department had two recent cases of domestic worker abuse.

Harold and Kimberly Countryman | In 2006, Harold Countryman, a former Department of State agent, and his wife, Kimberly Countryman, a realtor in northern Virginia, pleaded guilty to aiding and abetting visa fraud.  According to the plea agreement, Kimberly Countryman admitted to using the fraudulent visa to further the forced labor of a Cambodian woman in their employ. According to court documents, the couple provided materially false information to the Department of State to obtain a visa on behalf of a Cambodian woman, who they then brought to the United States to work for them as a domestic servant for two years. In the plea agreement, Kimberly Countryman admitted that she procured the visa with reason to believe that the visa would be used to commit a felony, namely forced labor. As a result, Kimberly Countryman is subject to an increase in her sentence. Kimberly Countryman acknowledged that she withheld a portion of the woman’s pay, took possession of the woman’s passport, and physically assaulted the woman.  As part of the plea agreement, the Countrymans were required to pay $50,000 in restitution and $50,000 in forfeiture.

Linda  and Russell Howard |  In 2011, Jane Doe, an Ethiopian national in her 30s filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against a State Department employee Linda Howard and her husband, Russell Howard, alleging involuntary servitude, forced labor and human trafficking in violation of the Trafficking Victims Protection Act of 2000 (TVPA).  She alleged that she was forced to work more than 80 hours a week for less than a dollar an hour; the exact amount was $0.88 an hour; the minimum hourly wage at the time of Jane Doe’s employment was $6.55 an hour.  Court awarded a default judgment to Jane Doe for total damages of $3,306,468.  Linda and Russell Howard had reportedly left the United States. See Court Awards $3.3 Million Default Judgment Against State Dept Couple Accused of Slavery and Rape of Housekeeper.

The Signal Plus the Noise, the Diplomatic Edition

The suspension of a high-ranking Taiwanese official for two years for “seriously damaging the country’s reputation” is the only case we are aware of in recent memory where an official was disciplined by the sending country in the aftermath of U.S. federal charges related to the treatment of a domestic worker.  In most cases, it looks like the official in question, protected by the sending state, gets moved elsewhere,  or even gets a promotion with no career repercussion. Clearly underpayment or mistreatment of a domestic employee is not considered a serious offense by a good number of diplomatic missions.

While diplomats continue to dodge cases like this behind diplomatic immunity, and as long as governments stand behind their diplomats when they commit infractions like this, the practice will continue. As the German Institute of Human Right points out: “...[E]mployers’ diplomatic immunity in prac­tice overrules the human rights of the victim and leads to a situation of de facto-unaccountability and –impu­nity for exploitative employers.”

In this India-U.S. row, we note that the outrage is focused on the circumstances of the diplomat’s arrest. And that is understandable. But it is also important to note that while the focus of the  outrage is the strip-search, few are talking about the alleged treatment of the domestic worker.  Unless, of course, we’re talking about the former Khobragade maid as a CIA agent.

In early December, Preet Bharara, the United States Attorney for the Southern District of New York also charged 49 Russian Diplomats/Spouses With Picking Uncle Sam’s Pocket in Medicaid Scam. Most of the diplomats charged are no longer in the country. And of the defendants still  here, most are attached to the UN Mission and presumably enjoy diplomatic immunity. If the U.S. may not be able to put anyone in jail nor be able to recoup the thousands of dollars in scammed Medicaid money, why charged them?  We suspect that the charges were brought to put a stop to the scam.  Basically a megaphone saying — we know what you’re doing, shame on you, now stop it.

As complicated as the Khobragade case may seem, it will be resolved eventually. A $90 billion bilateral trade partnership is at stake. Who would throw that partnership over the cliff for a mid-level official?  Or for an underpaid housemaid?  Stay tuned.  Perhaps the more interesting take on this incident is by Alison Frankel who writes, “For all we know, the State Department intended to send a message to the international diplomatic corps, which is often accused of cloaking itself in diplomatic immunity to avoid claims of mistreating domestic staff.”

Do we have an aha moment here?

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Maid in Manhattan Case: U.S. Attorney Preet Bharara, the Man Who Makes Embassy Row Tremble

— Domani Spero

On December 12, USDOJ announced the arrest of Indian diplomat, Devyani Khobragade for visa fraud related to her underpaid domestic employee.

The uproar caused by the arrest has only grown in the last several days.  In response to the arrest of its diplomat, India took several retaliatory actions against the U.S. Mission in India. Several examples below according to DNA India, some obviously petty, but others more serious:

  • Indian government officials cancelled their meetings with a visiting US Congressional delegation.
  • Called for details including salaries paid to all Indian staff employed at the US consulates, including Consulate officers & family.
  • Stopped all import clearances for US embassy including food and liquor.
  • “The government has asked for all US Consulate personnel’s ID cards and that of their families immediately. These will now be downgraded on par with with what the US provides to our Consulates in US,” sources said.
  • Asked the US to provide it with visa information and other details of all teachers at US schools and pay and bank accounts of Indians in these schools.

Then the former External Affairs Minister and BJP leader, Yashwant Sinha, called on the government to reciprocate against the alleged mistreatment of its diplomat by arresting the same sex companions of American diplomats using a Supreme Court verdict in India that restored a ban on gay sex.  “Put them behind bars, prosecute them in this country and punish them,” Mr Sinha said.  It appears he wasn’t alone.  According to NPR, a “senior Indian diplomat” told The Hindu that the government could retaliate against the gay partners of U.S. diplomats.  “We also know who all have brought in their gay partners and on what grounds they were given visas though there is a law against it in India,” the official said. “We can’t talk about it because this law is controversial and outdated but if the U.S. wants to go to this extent, then this law and several other options are there.”

On December 17, Delhi Police also removed the security barricades set up outside the American Embassy. “The ministry of external affairs requested us to remove these traffic measures around the US embassy and clear the road. The Nyaya Marg has been opened for public,” Special commissioner of Delhi Police (security) Taj Hassan told PTI.

The Indian Government must think of embassy security as a diplomatic privilege and not an obligation.  The Global Terrorism Index ranked India 4th (after Iraq, Pakistan, Afghanistan) as most affected by terrorism over a 10-year period.  So there is obviously a reason for those barricades.

Meanwhile, the diplomat at the center of the storm has written a letter to her colleagues, which was released online, and certainly adding to the furor about her alleged mistreatment:

My dear colleagues – senior and junior, 

I am so grateful for all the outpouring of unequivocal support and backing that has been available to me from the fraternity. I take comfort in the confidence that this invaluable support will also be translated into strong and swift action, to ensure the safety of me and my children, as also to preserve the dignity of our service which is unquestionably under siege.

While I was going through it, although I must admit that I broke down many times as the indignities of repeated handcuffing, stripping and cavity searches, swabbing, hold up with common criminals and drug addicts were all being imposed upon me despite my incessant assertions of immunity, I got the strength to regain composure and remain dignified thinking that I must represent all of my colleagues and my country with confidence and pride.

I feel I can continue to do so thanks to this strong and prolific support. I cannot say more now but will later, I did feel the deep need to thank you all so much. 

On December 18, the Embassy of India in Washington, D.C. released a statement that provides additional details of this case including accusations that the maid, Sangeeta Richard, Ms. Khobragade’s “domestic assistant” blackmailed her former employer and also have “taken cash, mobile phone and documents.”

On the same day, Secretary Kerry reportedly called Indian National Security Advisor Menon to discuss the December 12th arrest of Deputy Consul General Khobragade.  According to the State Department, in his conversation with National Security Advisor Menon, Secretary Kerry  “expressed his regret, as well as his concern that we not allow this unfortunate public issue to hurt our close and vital relationship with India.”

Also on December 18, Manhattan U.S. Attorney Preet Bharara  released a statement on the United States v. Devyani Khobragade case, clearing up misconceptions about the circumstances surrounding her arrest. No, she was not arrested in front of her children, and she was not handcuffed or restrained. And yes, she was “fully searched by a female Deputy Marshal — in a private setting — when she was brought into the U.S. Marshals’ custody, but this is standard practice for every defendant, rich or poor, American or not.” Zing!

Below is the full statement:

There has been much misinformation and factual inaccuracy in the reporting on the charges against Devyani Khobragade. It is important to correct these inaccuracies because they are misleading people and creating an inflammatory atmosphere on an unfounded basis. Although I am quite limited in my role as a prosecutor in what I can say, which in many ways constrains my ability here to explain the case to the extent I would like, I can nevertheless make sure the public record is clearer than it has been thus far.

First, Ms. Khobragade was charged based on conduct, as is alleged in the Complaint, that shows she clearly tried to evade U.S. law designed to protect from exploitation the domestic employees of diplomats and consular officers. Not only did she try to evade the law, but as further alleged, she caused the victim and her spouse to attest to false documents and be a part of her scheme to lie to U.S. government officials. So it is alleged not merely that she sought to evade the law, but that she affirmatively created false documents and went ahead with lying to the U.S. government about what she was doing. One wonders whether any government would not take action regarding false documents being submitted to it in order to bring immigrants into the country. One wonders even more pointedly whether any government would not take action regarding that alleged conduct where the purpose of the scheme was to unfairly treat a domestic worker in ways that violate the law. And 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?

Second, as the alleged conduct of Ms. Khobragade makes clear, there can be no plausible claim that this case was somehow unexpected or an injustice. Indeed, the law is clearly set forth on the State Department website. Further, there have been other public cases in the United States involving other countries, and some involving India, where the mistreatment of domestic workers by diplomats or consular officers was charged criminally, and there have been civil suits as well. In fact, the Indian government itself has been aware of this legal issue, and that its diplomats and consular officers were at risk of violating the law. 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?

Third, Ms. Khobragade, the Deputy General Consul for Political, Economic, Commercial and Women’s Affairs, is alleged to have treated this victim illegally in numerous ways by paying her far below minimum wage, despite her child care responsibilities and many household duties, such that it was not a legal wage. The victim is also alleged to have worked far more than the 40 hours per week she was contracted to work, and which exceeded the maximum hour limit set forth in the visa application. Ms. Khobragade, as the Complaint charges, created a second contract that was not to be revealed to the U.S. government, that changed the amount to be paid to far below minimum wage, deleted the required language protecting the victim from other forms of exploitation and abuse, and also deleted language that stated that Ms. Khobragade agreed to “abide by all Federal, state, and local laws in the U.S.” As the Complaint states, these are only “in part” the facts, and there are other facts regarding the treatment of the victim – that were not consistent with the law or the representations made by Ms. Khobragade — that caused this Office and the State Department, to take legal action.

Fourth, as to Ms. Khobragade’s arrest by State Department agents, this is a prosecutor’s office in charge of prosecution, not the arrest or custody, of the defendant, and therefore those questions may be better referred to other agencies. I will address these issues based on the facts as I understand them. Ms. Khobragade was accorded courtesies well beyond what other defendants, most of whom are American citizens, are accorded. She was not, as has been incorrectly reported, arrested in front of her children. The agents arrested her in the most discreet way possible, and unlike most defendants, she was not then handcuffed or restrained. In fact, the arresting officers did not even seize her phone as they normally would have. Instead, they offered her the opportunity to make numerous calls to arrange personal matters and contact whomever she needed, including allowing her to arrange for child care. This lasted approximately two hours. Because it was cold outside, the agents let her make those calls from their car and even brought her coffee and offered to get her food. It is true that she was fully searched by a female Deputy Marshal — in a private setting — when she was brought into the U.S. Marshals’ custody, but this is standard practice for every defendant, rich or poor, American or not, in order to make sure that no prisoner keeps anything on his person that could harm anyone, including himself. This is in the interests of everyone’s safety.

Fifth, as has been reported, the victim’s family has been brought to the United States. As also has been reported, legal process was started in India against the victim, attempting to silence her, and attempts were made to compel her to return to India. Further, the Victim’s family reportedly was confronted in numerous ways regarding this case. Speculation about why the family was brought here has been rampant and incorrect. Some focus should perhaps be put on why it was necessary to evacuate the family and what actions were taken in India vis-à-vis them. This Office and the Justice Department are compelled to make sure that victims, witnesses and their families are safe and secure while cases are pending.

Finally, this Office’s sole motivation in this case, as in all cases, is to uphold the rule of law, protect victims, and hold accountable anyone who breaks the law – no matter what their societal status and no matter how powerful, rich or connected they are.

The comments directed at Mr. Bharara on Indian media have turned nasty, a sampling here and here, but much worse on social media.

In early December 49 Russian Diplomats/Spouses Charged With Picking Uncle Sam’s Pocket in Medicaid Scam. That was Mr. Bharara’s office.  He, by, the way, has a 77-0 record in insider trading cases in his office’s campaign to root out illegal conduct on Wall Street. According to NYT, the government’s marquee conviction came in 2011, when a jury found the billionaire hedge fund manager Raj Rajaratnam guilty of insider trading.  And don’t forget Rajat Gupta, ex-director of Goldman Sachs and ex-head of consulting at McKinsey & Co., who was sentenced to two years in prison.

In 2011, Mr. Bharara, the man who makes Wall Street tremble, was India Abroad Person of the Year 2011, an event attended by who’s who of the Diaspora and India.

It looks like in 2013, Mr. Bharara is the man who makes Embassy Row tremble.

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De Sousa v. Dept of State, et al. – Diplomatic Immunity Whiplash

The case filed by former FSO, Sabrina De Sousa against the State Department was dismissed by United States District Judge, Beryl A. Howell on January 5, 2012. From Judge Howell’s opinion:

“The facts underlying this case are troubling in many ways. The plaintiff served the government and the people of the United States in the Foreign Service for a decade. During the course of her service to this country, she was accused and convicted in absentia of committing a crime in a foreign nation, not for any personal gain, but at the alleged behest of the United States government. According to her allegations, she requested the government’s assistance to counter the charges against her in Italy, but received none and was instead “[e]ffectively abandoned and left to fend for herself.” Am. Compl. at 2. Following her foreign conviction, she faces the risk of arrest and imprisonment if she travels outside the United States, which is a particular hardship in her case both because of the impact on her professional options and because she is a naturalized citizen with family members living abroad. Then, when the plaintiff sought judicial review in this Court, the government did little to minimize the “logistical obstacles” presented by the need to protect against the inadvertent disclosure of classified information, but rather denied her counsel the use of a secure computer to draft filings and “threatened” the continuation of her counsel’s security clearance. ECF No. 63 at 13 n.6. The message that this scenario sends to civilian government employees serving this country on tours of duty abroad is a potentially demoralizing one.”

On diplomatic immunity, the Court notes that “the government is alleged to have undertaken an action – the non-assertion of immunity on behalf of De Sousa in a foreign judicial proceeding – that is within its discretion.”

Also this:

“The plaintiff’s entitlement (or not) to diplomatic or consular immunity in the Italian proceeding is a non-justiciable foreign policy question. El-Shifa, 607 F.3d at 844 (“[C]ourts cannot reconsider the wisdom of discretionary foreign policy decisions.”). The relevant international treaties on diplomatic and consular immunity make clear that the immunities set forth in those treaties are to benefit states and not individuals. See Vienna Convention on Consular Relations, pmbl., Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820 (hereinafter, “VCCR”) (“[T]he purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.”);

Here are some facts about this case, extracted from the court filing:

  • Sabrina De Sousa is a naturalized U.S. citizen born in India who served as a Foreign Service Officer for the U.S. State Department from 1998 to 2009. 
  • In August 1998, she was assigned to the U.S. Embassy in Rome, Italy as a Political Officer, Second Secretary.



  • In May 2001, she was transferred to the U.S. Consulate in Milan as a Vice Consular Officer for a tour of duty scheduled to end in May 2004.
  • Her employer provided her with a United States government diplomatic passport that explicitly stated that she was abroad on a diplomatic assignment.
  • On February 17, 2003, the plaintiff was vacationing at a ski resort in Madonna di Campiglio, Italy, approximately 130 miles from Milan, Italy.
  • According to news reports, on that same day, U.S. and Italian intelligence agents kidnapped Abu Omar in Milan and, in an act of “extraordinary rendition,” transported him to Egypt, where he was interrogated and tortured.
  • In January 2004, the plaintiff’s tour of duty in Italy ended and she returned to the United States, where she continued to work for the State Department.
  • In July 2006, the prosecutor issued an arrest warrant for De Sousa, whom he identified as one of the four U.S. officials mainly responsible for the alleged kidnapping. The warrant against De Sousa is a EUROPOL warrant, meaning that if she attempts to enter any country in the European Union, she faces immediate arrest and transfer to Italian authorities. Countries outside the European Union could also choose to arrest and extradite her to Italy. Arrest warrants were also issued for several other alleged U.S. and Italian agents.
  • Around the time that her arrest warrant was issued, the plaintiff wrote to then-Secretary of State Condoleeza Rice requesting that the U.S. government invoke diplomatic or consular immunity with respect to her alleged involvement in the kidnapping of Abu Omar and provide her with legal representation to counter the charges in the Italian criminal case. She did not receive any response.
  • The plaintiff’s employer instructed the plaintiff not to communicate with her Italian government appointed defense lawyer or with the media.
  • In October 2008, the plaintiff requested approval from her employer to take a vacation to visit family members in India, but the request was denied because of concern that theoutstanding EUROPOL warrant for De Sousa might lead to her arrest and extradition to Italy.
  • In early 2009, the plaintiff again wrote to the Secretary of State – by then Hillary Clinton– requesting official government assistance with the Italian case, but she again did not receive a response.
  • On February 13, 2009, the plaintiff resigned from her employment with the U.S. government.
  • In August 2009, approximately three months after the plaintiff’s filing of this action in May 2009, the U.S. government agreed to provide the plaintiff with defense counsel in Italy.

The last time diplomatic immunity was big news was when Raymond Davis was arrested in Pakistan and the USG contended that he was protected by diplomatic immunity because of his employment with the U.S. Consulate in Lahore.  He was later reported to be a private security contractor for one of the agencies that must not be named.

This case involves a Foreign Service Officer who held a diplomatic passport at the time of the alleged crime. And from the looks of it, the State Department and the U.S. Government gave her the finger instead of lifting one to help her.  Granted that the allegation of “extraordinary rendition” has such a nasty ring to it …. the government’s handling of this case is more than “potentially demoralizing.”  How would you like to be in her shoes?  The next time the State Department talks about leadership and “taking care of the troops,” somebody please ask nicely about this one.

Sabrina De Sousa v Department of State, et al.

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