Wednesday, February 09, 2011

Pakistan: The Raymond Davis Case - Questions and Answers

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On January 27, 2011, Raymond Davis, a member of the staff of the US Consulate-General in Lahore, allegedly shot and killed two Pakistani motorcyclists at a traffic stop in Lahore. He claimed they were armed and about to rob him. A third Pakistani was killed when a U.S. consular car dispatched to help Davis allegedly crushed to death another motorcyclist while speeding along the wrong side of the road. Davis has been detained by the Lahore Police despite his diplomatic immunity and there has been growing public demand in Pakistan---partly spontaneous and partly instigated by anti-US religious elements--- that he should be prosecuted in a Pakistani court and not handed over for trial in the US as would be normally done in such cases. The public anger has been aggravated by the alleged suicide of the wife of one of the Pakistanis killed and by the over-focus of the US State Department on the diplomatic immunity aspect of the case overlooking the human aspect of the case arising from the deaths of three Pakistanis due to the rash and negligent actions of two members of the Consular staff. I have been in receipt of some questions from readers on this subject. I answer them below:

Q. Was Raymond Davis an officer of the USA’s Central Intelligence Agency (CIA)?

A. It is difficult to say, but my own assessment repeat assessment is that he is probably from the section of the US State Department, which is responsible for the physical security of US diplomatic and consular missions abroad and their personnel. This section does take serving and retired officers on deputation from the CIA and other security agencies. It has often been alleged that it also outsources some of its tasks to private security agencies and gives their staff diplomatic cover (protection ). I tend to believe that the reflexes of Davis and the other officer who rushed to his help were not those of a professional CIA officer. Professional CIA officers are well-trained to maintain their cool under critical circumstances and avoid over-reaction.

Q. Was the US correct in giving diplomatic status to someone who is not performing well-recognised diplomatic functions?

A. Over the years, there have been complaints from many countries that some Governments are in the habit of indiscriminately giving diplomatic status to their officers posted in their foreign missions irrespective of whether they perform well-recognised diplomatic functions or not. Despite this, this practice continues. In the ultimate analysis, it is up to the State Department to decide who among its officers posted in Pakistan will have diplomatic status. In the intitial stages, before the officer leaves for Pakistan, the Government of Pakistan has the right to disagree with the decision of the State Department and refuse to give him a visa on his diplomatic passport to enable him to take up the job. But once the Pakistani Foreign Office gave a diplomatic visa to Raymond Davis and allowed him to join his post in Pakistan, it is bound to respect his diplomatic immunity and cannot wriggle out of this .

Q. It has been alleged that the two Pakistanis killed by Davis belonged to the Inter-Services Intelligence (ISI). Can it be correct?

A. It is difficult to say. From the way they were following Davis, I tend to assess that they were police officers of Pakistan’s Intelligence Bureau (IB), which comes under the Ministry of the Interior, trained in surveillance duties who were probably keeping a mobile surveillance on Davis. They could also be police officers on deputation with the ISI for performing surveillance duties.

Q.What offences has Davis committed under Pakistani laws?

A.He has committed two offences. The first offence is carrying a weapon outside the Consulate premises. It has been reported by the “Express Tribune” of Pakistan that some months ago Rehman Mallik, the Interior Minister, had withdrawn the provision under which foreign diplomats posted in Pakistan were allowed to carry weapons outside their places of work for their personal protection after obtaining a licence from an authorized magistrate. Now, while foreign missions are allowed to keep weapons inside their premises for the protection of the premises, their staff are not allowed to carry weapons outside the premises for their personal protection. They have to seek police assistance if they apprehend any threat to their personal security while moving about outside their places of work. By carrying a weapon even after the withdrawal of the provision, Davis violated Pakistani laws. In my view, a professional CIA officer might not have done this. The second offence committed by Davis was to open fire on the persons following him thereby allegedly killing them.

Q: It has been claimed by the US that he opened fire in exercise of his right of self-defence?

A.It is for the court to decide whether the circumstances of the case justified his opening fire in self-defence.

Q. Whose responsibility it is to investigate and prosecute the case?

A. The responsibility for the initial investigation is that of the Pakistani Police. They are required to investigate irrespective of whether he enjoyed diplomatic status or not. However, they do not have the right to prosecute him before a Pakistani court in view of his diplomatic status.

Q. Can the police subject him to custodial interrogation during the investigation?

A. If diplomatic practices are correctly followed, Davis cannot be kept in police or judicial custody in Pakistan. The normal course would have been to hand him over to the US Consulate with a request that he should remain in Pakistan to assist the investigating authorities and that he should be allowed to leave for the US only after the investigating authorities certify that his presence in Pakistan is no longer required. Under the normal procedure, he would have been interrogated either in the Consulate or in a police station without taking him into police custody. The Pakistani authorities have violated this procedure by detaining him in their custody and by producing him before a court---apparently for seeking his police remand--- without allegedly keeping the US Embassy in the picture.

Q. How has the US State Department handled the case?

A. Badly. The moment the incidents happened the US should have announced a preliminary compensation to the families of the three Pakistanis killed with the promise to consider more after the facts are established. I do not get the impression that this was done. There has been some panic in the US reflexes possibly due to fears that something could happen to Davis in Pakistani custody. This has led to a series of over-reactions such as delaying an already announced visit of President Asif Ali Zardari to the US, the reported cancellation of a meeting between Mrs. Hillary Clinton, the US Secretary of State, and the Pakistani Foreign Minister in the margins of the Munich Security Conference etc. Due to the surge in the US Drone strikes in the tribal belt, there is already some criticism in Pakistan that the US does not respect Pakistan’s sovereignty and that the Zardari regime is not standing up to the US to protect Pakistan’s sovereignty. Such criticism will intensify now. In recent months, there were indications that the post-Lal Masjid raid anger which led to an escalation of jihadi terrorism may be subsiding. These incidents in Lahore and the US mishandling of the sequel could provide fresh oxygen to the anger resulting in a fresh spurt in acts of jihadi terrorism.

Q. What will be the ultimate denouement in the case?

A. The US will stick to its stand that it cannot withdraw the diplomatic immunity of Davis and that he will be prosecuted before a US and not a Pakistani court. The Government of Pakistan knows that in view of its dependence on the US, it has no other option but to accede to the US request to let him go to the US to face a trial. But this has been made difficult by the mishandling by the US State Department and by its over-reactions. In such sensitive cases involving a country where anti-US anger is already high and anti- Zardari suspicion is already strong, undue pressure could prove counter-productive. A complicating factor is the assertive judiciary headed by Chief Justic Iftikhar Mohammad Chaudhury of the Pakistan Supreme Court. His enquiries into cases of missing persons---many of them informally handed over to the US by the Musharraf regime for the investigation of their suspected links with Al Qaeda---- have already badly affected mutual legal assistance between the US and Pakistan. Before he took over as the Chief Justice, there were over 200 cases of such informal arrests and hand-over to the US. Sine he took over, there has not been a single case. From his observations and rulings in the court in petitions by relatives of missing persons, it is evident that he feels that Pakistani Governments have been unduly deferential to the US in cases involving the rights of Pakistani citizens. If he or the judges under him insist that by carrying a weapon, Davis has violated the conditions of his diplomatic immunity and hence could be prosecuted in Pakistan, the US and Pakistan will face a serious dilemma in sorting out this case.

Q. It has been alleged that the hitherto strong stand of Islamabad has been motivated by the ISI’s anger over a private complaint filed against Lt.Gen.Ahmed Shuja Pasha, the DG of the ISI, in a New York court demanding his prosecution for his alleged involvement in the 26/11 terrorist strikes in Mumbai? Some have been claiming that Islamabad has been wantonly taking a seemingly strong stand to get more assistance from the US?

A. Present evidence does not support such allegations or claims. ( 9-2-11)

The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai.