CIA Status Improves the Case for Diplomatic Immunity

Raymond Davis, charged with killing two men in Pakistan, has been confirmed by the U.S. government to be an officer of the CIA. Davis the military contractor is in a weaker position than Davis the officer of the CIA.
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Raymond Allen Davis has been confirmed by the U.S. government to be an officer of the Central Intelligence Agency. The main reasons for this confirmation are that a British newspaper already revealed it and, second, to secure a stronger position that Davis has diplomatic immunity -- a special privilege that has precedence of being extended to officers of the CIA.

The story of how the British newspaper the Guardian was able to establish this fact is itself fascinating. The Guardian simply called 9News in Colorado, where Davis and his wife have a residence, to ask why the station's website briefly indicated that Mrs. Davis gave a telephone number at the CIA when asked by a reporter for more information about her husband. (9News confirms that official word from both the CIA and the State Department interceded to have them remove the CIA reference.)

According to a reporter at 9News, the Guardian approached them because it found a reference to 9News's coverage of the Davis case in several outlets of the Pakistani media. The article that the Pakistani media had referenced was titled "State Dept.: Highlands Ranch man accused of killing 2 in Pakistan has diplomatic immunity" and was posted, without retraction for just under 24 hours -- from Feb. 2 to 3. The original Feb. 2 article is no longer available and is now listed with a Feb. 3 dateline, with the reference to the CIA having been changed to "a government spokesperson in Washington D.C."

Investigative journalism aside, if Davis were proven to be -- as many people in Pakistan and elsewhere believe -- a military contractor paid by the U.S. government, and not a staff member of its embassy in Islamabad, his chances of getting diplomatic immunity are more precarious.

The Vienna Convention of 1961, to which Pakistan and the U.S. are signatories, leaves a massively vague interpretation up for grabs in its Article 37, which states that "administrative and technical staff" of a diplomatic mission also qualify for diplomatic immunity -- i.e., possibly, CIA officers. If Davis were a military contractor he would have a harder time claiming diplomatic immunity, not least because applying the word "staff" to contract workers, as opposed to salaried employees, would be an impressive stretch.

Raymond Davis the military contractor is in a weaker position than Raymond Davis the officer of the CIA.

Further, while Article 38 states that the individual in question has immunity "in respect of official acts performed in the exercise of his functions," it would be difficult to establish that the official acts of any U.S. consular officer involve the circumstances and behavior that Mr. Davis admits to engaging in (and for which there is a great deal of supporting evidence).

Davis is charged with and has admitted to murdering the two men, though he claims it was in self-defense. Much of the possibility of procuring the immunity could vanish under the Convention's 1963 treaty on consular relations (to which Pakistan is also a signatory, along with the earlier 1961 treaty, under its 1972 Consular Privileges Act) which states in Section II, Article 41 that exceptions to the immunities enjoyed by "consular officers" would be made "in the case of a grave crime and pursuant to a decision by the competent judicial authority." Murder would qualify. Pakistan's judicial authority is the one who, according to the terms of this article, should decide on that.

In the precocious history of CIA officers and diplomatic immunity, there have been several bumps along the road. Sometimes, as in the case of Hugh Francis Redmond, the U.S. government did not out their CIA officer, but the Chinese government figured it out on their own and he died 19 years after starting a prison term in a Shanghai prison.

Other times, the identities of CIA officers have been made public, as in the recent case of the 22 CIA officers who were tried and in 2009, convicted, in absentia, of extraordinary rendition from Italy of the local imam of Milan to Egypt, where he was allegedly tortured for confessions. These 22 individuals will not be paying for the crime the Italians have convicted them of, though being a fugitive from justice does pose a challenge for any future visits to Europe.

And yet other times, CIA officers with diplomatic immunity have made their way out of sticky situations in foreign countries. The Associated Press makes reference to one such case in the 1980's in Ethiopia.

As the legal jargon above indicates, the Davis case could easily be interpreted in a number of different ways. At this point, the easiest solution to the Davis case -- and the one that may likely be pursued, judging by the news that Davis will undergo trial in the prison in which he is being held -- is to simply go through the motions, allow a trial, and quietly release him. That way, Pakistan's judicial system will not have been disregarded, and the U.S. government will get their man back.

The question simply remains whether this will be enough to satisfy a Pakistani public that is already simmering with discontent over U.S. activities within their borders, specifically the sort of covert activity that has involved drone attacks killing numerous civilians. From the looks of it, however, both governments may be willing to take that risk.

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