Friday, February 11, 2011

Suddenly, States Have Authority Over Aliens

The sum qua non of the left on aliens is that States have no authority over illegal aliens and that only the Federal government can take them into custody because aliens have to do with foreign policy and foreign policy is exclusively that of the Federal government.
Well, now that the Punjab State government in Pakistan has arrested an American diplomat and are holding him in violation of the Vienna Convention on Diplomatic Relations of 1961, the radical left is on the war path, defending the right of a State government to arrest and hold a diplomat.
As is usual with the left, they deceive their readers. They claim that the Vienna Convention on Consular Relations of 1963 authorizes the arrest, as claimed by the Reds at Counterpunch:
The US media have been uncritically quoting the State Department as saying that Pakistan is “violating” the Vienna Convention on Consular Relations of 1963 by holding Davis in jail on murder charges. Those reporters should check the actual document.
Section II, Article 41 of the treaty, in its first paragraph regarding the “Personal inviolability of consular officers,” states:

“Consular officers shall not be liable to arrest or detention pending trial,
except in the case of a grave crime and pursuant to a decision by the competent judicial authority.”

In other words, the prosecutorial, police and judicial authorities in Lahore and the state of Punjab are doing exactly what they are supposed to do in holding Davis on murder charges, pending a judicial determination concerning whether or not he can properly claim diplomatic immunity.

The US claim that Pakistan is violating the convention is simply nonsense.
But the consular relations treaty also states in Article 43 that:

1.Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
So, if Raymond Davis' acts were official business of the U.S., then he cannot be held. And, as Counterpunch implied, Davis is a CIA agent or contractor, then it appears that acting in self-defense was an official act in that he was defending himself from attack.
And the Pakistani government had obviously failed in its duty to protect consular officers:

The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.
More importantly, it appears the gunmen in question were ISI agents and acting on official authority with their attack on Davis.
The four Pakistani officials who spoke to ABC News on the condition of anonymity say that the two men who Raymond Davis killed in Lahore last month were working for Pakistan's premiere intelligence service, and they were following Davis because he was spying.

If true, their story dramatically changes the nature of an incident that is already severely straining the two countries' already tumultuous relationship. Davis's detention is fraying the U.S. alliance with Pakistan, one of the most delicate and important in the world. U.S. and Pakistani officials both admit the fate of Raymond Davis could threaten an alliance that is critical to the war in Afghanistan and the fight against al Qaeda.
But despite the selective quotations from the Reds, Davis is not a consular officer, but a diplomatic officer, covered by Vienna Convention on Diplomatic Relations of 1961, which is quite stricter regarding arresting and holding diplomats as opposed to consular officers. But Counterpunch and their writer Dave Lindorff are either too dumb to know the difference between a diplomatic officer and a consular officer or they know and act to deceive:
As in Article 31 thereof:

1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction...
The Reds at Counterpunch write further to deceive the reader by claiming that the United States acts outside the reach of international agreements by prosecuting foreign diplomats:
There is also the matter of double standards. The US routinely violates the Vienna Diplomatic Accord that governs international diplomatic rights. For example, the same convention requires countries that arrest, jail and prosecute foreigners for crimes to promptly notify the person’s home country embassy, and to grant that embassy the right to provide legal counsel. Yet the US has arrested, charged with murder, and executed many foreign nationals without ever notifying their embassies of their legal jeopardy, and has, on a number of occasions, even gone ahead with executions after a convict’s home country has learned of the situation and requested a stay and a retrial with an embassy-provided defense attorney. The US, in 1997, also prosecuted, over the objections of the government of Georgia, a Georgian embassy diplomat charged with the murder of a 16-year-old girl.

But Article 32 gives the sending state the authority to waive immunity:
1.The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State.
Which in the case of the government of Georgia waived regarding the aforementioned Georgian diplomat.
But back to the illegal alien issue. The crooked Clinton appointee ruled parts of the Arizona SB1070 unconstitutional because the Federal government made policy on arresting illegal aliens, but Counterpunch seems to think that States can arrest and prosecute diplomats specifically protected by international treaty:
Under Pakistani law, only actual consular functionaries, not service workers at embassy and consulate, have diplomatic status. Furthermore, no immunity would apply in the case of “serious” crimes--and certainly murder is as serious as it gets.
Sort of like Arizona law, Pakistani law cannot trump treaties, but there is no treaty protecting illegal aliens from arrest by State law enforcement officers. There are two treaties regarding diplomats and consular officers.
Of course, the Reds at Counterpunch slyly implied that the Al-Queda and Taliban bombing campaigns in Pakistan are not the fault of the Muslim terrorists, but that of the United States, implying that Davis was involved:
Some Pakistani publications, meanwhile, are speculating that Davis, beyond simple spying, may have been involved in subversive activities in the country, possibly linked to the wave of terror bombings that have been destabilizing the central government.
It shows the Davis case is just another battle between the Red-Green Alliance and the USA. And the left always chooses the enemies of the U.S.
It also will teach the famed ISI a little lesson, training is important. The ISI obviously relies on its fearsome reputation, not training. Their agents got into a gunfight and lost out to a real gunfighter. Lack of training kills.


Consul-At-Arms said...

Thanks for untangling the differences between consular and diplomatic immunities. I don't read Counterpunch so was unaware of how, er, confused they were on the subject.

I've quoted you and linked to you here:

Federale said...

Thanks for the link.