Was the Indian Diplomat Guilty?

Clip_19India, led by its upstart media and corrupt short-sighted politicians, has created a furore over the arrest of Devyani Khobragade, 39, the deputy consul general in New York on charges of visa fraud on December 12, 2013 who was expelled from the United States and returned to India on January 10, 2014. One reason that is not being mentioned as it may not be politically correct is that Devyani is a Dalit and the Indian politicians cannot be seen as opposing or even not supporting a Dalit victim so close to the national elections.

Only with the reluctant agreement from the State Department to expel a diplomat of equal rank from its embassy in New Delhi, was the matter seemingly resolved. Yet the incident has uncovered a gaping cultural disconnect between the world’s two largest democracies. While Americans reflexively came to the defense of a maid who the authorities said was subjected to abuse, Indians reflexively sympathized with the diplomat. This is partly because middle- and upper-class Indians typically have their own servants, who often work long hours for far less than the $573 a month that Khobragade had promised to pay. But the bigger reason, especially compelling in an election year, is national pride. In the month that passed since Khobragade’s arrest, she has been transformed into a symbol of India’s sovereignty, pushed around and humiliated by an arrogant superpower.A 1999-batch IFS officer, Khobragade was arrested and then handed over to the US Marshals Service (USMS). She was later posted to India’s Permanent Mission in New York.

The prosecutor, Preet Bharara, the United States attorney for the Southern District of New York, and himself of Indian background, said the diplomat’s conduct showed that “she clearly tried to evade U.S. law designed to protect from exploitation the domestic employees of diplomats and consular officers.”

The diplomat, Devyani Khobragade, had been accused of submitting false documents to obtain a work visa for a housekeeper.

If convicted, Khobragade faces a maximum sentence of 10 years for visa fraud and five years for making a false declaration.

She was arrested and handcuffed as she was leaving her daughter at school, and there had been accounts that she was strip-searched and then held with drug addicts before being released on $250,000 bail.

The Indian government has complained bitterly about Devyani’s treatment. In New Delhi, Prime Minister called the arrest deplorable, newspaper editorials expressed outrage and the police removed barriers meant to protect the US Embassy.

But NY Prosecutor, Bharara, in his statement, said there had been “much misinformation and factual inaccuracy in the reporting” about the case, and the inaccuracies were “misleading people and creating an inflammatory atmosphere on an unfounded basis.”

Clip_18“Is it for U.S. prosecutors to look the other way, ignore the law and the civil rights of victims,” Bharara asked, “or is it the responsibility of the diplomats and consular officers and their government to make sure the law is observed?”

“And one wonders,” Bharara added, “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?” Bharara noted that the diplomat had underpaid the housekeeper and made her work more hours than her contract called for. This is a valid question and the Indian media is failing to address this important question as the whole nation is in the habit of exploiting the under-privileged and is used to it.

Although his office did not take Devyani into custody, Bharara said she had been “accorded courtesies well beyond what other defendants, most of whom are American citizens, are accorded.” He said that State Department agents had arrested her “in the most discreet way possible,” and that unlike most defendants, she “was not then handcuffed or restrained.”

The arresting authorities had not seized her telephone as they normally would have, Bharara said, and allowed her to make calls for about two hours, including to arrange for child care. Because it was cold outside, Bharara added, the agents “let her make those calls from their car and even brought her coffee and offered to get her food.”

It was true, Bharara added, that Ms. Khobragade was “fully searched” in a private setting by a female deputy marshal when she was taken into the custody of the United States Marshals Service, which handled her detention. But, he said, “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.”

The tone of Bharara’s statement, issued in the evening in New York, seemed in marked contrast to an expression of “regret” made earlier in the day by Secretary of State John Kerry in a call to a senior Indian official, as Kerry sought to ease tensions with India over the episode.

Kerry’s call to the stiff-necked official, Shivshankar Menon, India’s national security adviser, was disclosed by the State Department in a statement.

Clip_117“As a father of two daughters about the same age as Devyani Khobragade, the secretary empathizes with the sensitivities we are hearing from India about the events that unfolded after Devyani’s arrest,” the State Department said in its statement.

Devyani’s lawyer, Daniel N. Arshack, said that his client would be pleading not guilty, that the allegations against her were “false and baseless” and that her diplomatic status protected her from prosecution.

The U.S. authorities subjected her to a strip search, cavity search and DNA swabbing following her arrest, despite her “incessant assertions of immunity.”

The U.S. marshals strip searched her in jail, which they say is routine procedure for someone accused of a felony. The marshals said they were not told to give Khobragade any privileged treatment.

Khobragade’s father, Ttam Khobragade, was outraged, saying that his daughter had “not done anything to be treated like that. What was done was absolutely atrocious.”

In an email published in India media on Dec 18, Devyani said she was treated like a common criminal.

“I broke down many times as the indignities of repeated handcuffing, stripping and cavity searches, swabbing, in a holdup with common criminals and drug addicts were all being imposed upon me despite my incessant assertions of immunity”.

Khobragade, who was released on $250,000 bail, would have to report to police in New York every week.

Clip_12Khobragade’s case has touched a nerve in India, where the fear of public humiliation resonates strongly and heavy-handed treatment by the police is normally reserved for the poor. For an educated, middle-class woman to face public arrest and a strip search is almost unimaginable, except in the most brutal crimes.

Prosecutors say Khobragade claimed on visa application documents she paid her Indian maid $4,500 per month, but that she actually paid her less than $3 per hour. Khobragade has pleaded not guilty and plans to challenge the arrest on grounds of diplomatic immunity.

Brennan reported that a major sticking point between the U.S. and India is whether Khobragade — a junior diplomat — should even be considered immune to prosecution.

U.S. State Department deputy spokeswoman, said Khobragade does not have full diplomatic immunity. Instead, she has consular immunity from the jurisdiction of U.S. courts only with respect to acts performed in the exercise of consular functions.

Amid efforts to resolve the raging diplomatic row over the arrest of Devyani Khobragade, the US so far has been rejecting India’s demands of dropping visa fraud charges against Devyani and apologising for mistreating her.

State Department spokesperson Marie Harf made it clear that Devyani will have to face the “very serious” allegations and that the immunity sought for her after her transfer to India’s Permanent Mission to the UN is “not retroactive”.

The two countries discussed specific steps to resolve the situation during a telephone call made by US Under Secretary of State for Political Affairs Wendy Sherman to Foreign Secretary Sujatha Singh to follow up on the conversation Secretary of State John Kerry had with National Security Advisor Shivshankar Menon.

We take these allegations very seriously. We’re not in any way walking back from those allegations or the charges. Again, this is really a law enforcement issue,” Harf said in response to a volley of questions on the issue.

The spokesperson replied in the negative on being asked whether Devyani would be allowed to go “scot-free”.

“I don’t know the details of the complaint, and I don’t know if even withdrawing the complaint, which I’m not saying anybody is considering would, in fact, drop the charge. That’s not something that’s even being considered,” Harf said.

“We certainly take these types of allegations very seriously though. It’s not a decision for us whether to prosecute or not,” Harf said.

Contradicting External Affairs Minister Salman Khurshid’s remark that the two sides were trying to lock a time for a conversation between him and Kerry, Harf said nothing was scheduled as of now.

“No plans for Kerry to call Khurshid,” she said.

“Generally speaking, if there’s a change in immunity, because of a different diplomatic status, that immunity would start on the date it’s conferred, after the process,” Harf said.

“So there’s a process: it goes to the UN Secretariat, comes to the US State Department, everybody has to say yes. There’s a process, a bureaucratic process. And then, if a different diplomatic status is conferred, it’s conferred at that date,” she said.

Harf termed India’s allegations that the US did not respond to the series of letters and communications that were made by it as “highly inaccurate”.

“It’s highly inaccurate to say that we ignored any Government of India communiques on this issue, period,” she said, but refused to divulge the details citing the legal nature of the case.

“We’re still compiling a precise sequence of all of our government-to-government communications on it – goes back months. Some of these communications are private diplomatic conversations or law enforcement sensitive,” she said.

Harf refused to distance the State Department from the highly rhetorical statement of Indian-American prosecutor Preet Bharara, who is handling the case, as was being reported from India.

Harf, responding to the furore over the issue, said, “We are conveying repeatedly the same message, both about our regret about what happened, but also how we move forward from here.”

She said the US informs annually every country having diplomats here through diplomatic notes about “obligations they have for their staffs when they bring them to the United States.”

“We make those obligations very clear and we take any allegations that they haven’t done so very seriously. So certainly, there’s no discussion like that going on. We just want the process to move forward,” Harf said.

Harf acknowledged that Sangeeta Richard’s father-in-law works for the US Embassy in New Delhi.

“I can confirm thar he either was or is – I don’t know the current status – employed in a personal capacity by a US diplomat, not as a US Government employee,” she said.

“But I would say that we have engaged in extensive conversations with the Government of India about this issue in Washington, in New York, in New Delhi, going back to the summer,” Harf said.

“We’ve also requested the Government of India to provide us with the results of its own enquiry into the allegations made by Dr Khobragade’s domestic worker and to make her available to discuss them, I don’t think either of which was done,” Harf alleged.

Defending the US Government’s decision to provide visa to the immediate family members of the missing Indian maid, she said it was part of the effort to unite the family.

“Without going into specifics about some of those details, the US Government has taken steps to reunite Sangeeta with her family. Obviously, I’m not going to go into specifics about that.”

“We are aware of the existence of allegations that the family was intimidated in India. Obviously, I can’t confirm those. But in general, we take those kinds of allegations very seriously,” Harf argued.

Writing in Delhi Durbar, Archis Mohan says the genesis of the current controversy involving an Indian diplomat dates back to a 2010 case, in which another consul at the Indian consulate in New York, Neena Malhotra, along with her husband, was directed by a New York court in 2012 to pay $1.5 million for “barbaric treatment” to their domestic help Shanti Gurung who had accused the couple of “slavery”. By then the Malhotras were back in New Delhi; the case was filed against them after their leaving NY.

In New Delhi, Malhotra occupied important postings. She was, until recently, joint secretary in the visa division. Here, in November, 2013, Malhotra refused a visa to the spouse of a gay US diplomat when she discovered that the couple were homosexual. She said Indian law didn’t recognise gay marriages.

This hurt the Americans as the Indian diplomat threw the rule book at them. Given South Block’s relations with the US, the US Embassy ensured that Malhotra was transferred out soon enough and the gay couple granted visa. There was a feeling that Malhotra may have been unfairly insistent that the American diplomat follow the rule book, when the spouse could have been granted a visa as a family member if not as spouse.

Malhotra may have only been doing to the Americans what they did to her over the maid issue. However, Malhotra was shifted to managing archives and records, clearly a punishment posting.

But the Americans were not satisfied. In New Delhi, IFS officers were upset that one phone call from Roosevelt House ensured the diplomat was moved out, in what was clearly a public message to the entire diplomatic corps that the Americans should not be treated lightly. This, when the diplomat was only following laid down rules.

The Americans have become used red carpet treatment in the last decade, particularly during the Manmohan Singh years. Malhotra’s refusal to grant visa was an insult for which the Americans wanted to pay back the Indians. This is where they extracted revenge on Khobragade

Read the full blog at Delhi Durbar: Khobragade arrest due to escalation gone awry:

In a separate post, Archis Mohan explains why South Block is seething with anger at the arrest of Devyani Khobragade: ‘The Americans Have Slapped Us Hard in the Face’

Made a Monkey

Indian diplomats perceive this arrest as a betrayal and are calling it “a slap across their face” and that the Americans “made a monkey out of them”. The trust built between India and the U.S. over the past decade has unravelled in the span of a week.

The question whether Khobragade indulged in illegality has ceased to be the issue. It has now become more about the Americans not repaying the trust the current dispensation in New Delhi had reposed in them. South Block is also utterly convinced that the U.S. State Department was well aware of the arrest when it took place

Some Indians asked if our police force had arrested Martha Stuart, Paris Hilton or Brian Gumbel would they be strip searched and placed in cells with other inmates? 

“There is always this sense, since the end of the Soviet Union, that America is too big for its britches,” said Sandip Roy, senior editor of a news website. “What happened to Devyani is seen in a larger, cosmic sense as that kind of unilateral thing, like, ‘I will go and invade Afghanistan, and I don’t care what anyone thinks.’ ”

Daniel N. Arshack,  Khobragade’s lawyer in New York, agreed that once negotiations with prosecutors broke down, “this week turned into a focus on diplomatic solutions.” Arshack said that his client’s husband, a college professor, and two young daughters, ages 4 and 7, who are all American citizens, had remained in New York.

The domestic worker, Sangeeta Richard, told prosecutors that she was forced to work 94 to 109 hours a week, with limited breaks for calls and meals, according to an indictment handed up in Federal District Court in Manhattan. Last summer, it said, Ms. Richard told Khobragade that she was unhappy with the work conditions and wanted to return home, but her employer refused the request and would not return her passport.

India then granted Khobragade the full immunity and privileges of a diplomat, a set of rights not accorded those posted in consulates, as she was at the time of the arrest. Though the United States appealed to India to waive that immunity, India refused, and transferred her to a new position at the Foreign Ministry in Delhi. The State Department then told her to leave the United States, which she then did.

Devyani was seen off at the airport by an official of the State Department. He told Devyani that, ‘Madam, I am sorry, and it was wrong.’ She told the official, ‘You have lost a good friend. It is unfortunate. In return, you got a maid and a drunken driver. They are in, and we are out.’ ”

Devyani’s father, Khobragade, a retired bureaucrat who has led small protests in recent days at the American Consulate in Bombay, said his daughter is seen so positively in India that political parties have approached both her and him to run in parliamentary elections, and that he was inclined to do so.

“At this moment, through the agony my family has gone through in the past month, you people stood with me like a rock,” he said at the airport. “One thing is clear from this: If this country, with 1.2 billion people, if they come together for a cause, justice is inevitable.”

Sangeeta Richard, in a statement issued through Safe Horizon, a victim services agency that has been representing her in New York, said that she was disappointed to learn that Khobragade had left the United States. “I stood up for my rights as a worker and I only wish that Defendant Khobragade would stand up in court and address the charges against her,” Ms. Richard said.

One thing that has baffled American observers — in particular Preet Bharara, the United States attorney in Manhattan — is why there is so little outrage about the treatment of Sangeeta Richard. In fact, Indian newspapers routinely carry articles about abuse of domestic workers, and many people interviewed said the sympathy would have been with the accuser had the case occurred in India.

But because it emerged in the United States, and Khobragade represented India, many people interviewed saw her treatment as a humiliation for the country.

“You have to take Devyani out of this, the support is for her position,” said Subhajit Sengupta, one of the journalists who camped outside Terminal 3. “What she has done is wrong. What the U.S. has done is also wrong. Since what the U.S. has done is against a country, it will be taken as a matter of prestige.”

Maneesha Puri, 53, said the pay given to domestic help is “our concern.” And she expressed sputtering indignation that a woman of Khobragade’s social position would be strip-searched.

“What kind of checking are they doing, strip-checking?” she said. “She is a diplomatic person and you strip her and check her because the maid says she was ill-treated? It’s ridiculous. It’s not that she had employed an American servant. This was an Indian servant.”

Whether the case now fades off the national agenda depends in part on whether Khobragade speaks publicly about it.

The lawyer, Daniel N. Arshack, who provided the account of her departure, also offered a first look at his negotiations with prosecutors in the office of Preet Bharara, the United States attorney in Manhattan. Prosecutors have said they outlined “reasonable parameters for a plea” but received no response. Arshack said he met with prosecutors on Jan. 4, a Saturday. Khobragade was not there but with her permission, two Indian diplomats attended the meeting.

A State Department official said that while the legal and diplomatic processes were separate, the State Department encouraged India to work with the Justice Department.

Arshack said that the defense had been willing to have an independent arbiter review the case and determine whether there had been an underpayment to the worker, Sangeeta Richard, and “to be bound by that finding.”

But he said Bharara’s office insisted that as part of any deal, Khobragade, would have to plead guilty to a crime and acknowledge her participation in a fraud.

“That was their prerequisite,” Arshack recalled. “Their threshold issue was, ‘You must admit to committing a crime and to defrauding the U.S.’ ” He said a guilty plea “was a nonstarter” for his client. “She has steadfastly refused to plead guilty to any crime because she didn’t commit one,” he said. “That has been her position from the beginning.”

Arshack said he and the Indian diplomats “were troubled by the intransigence of the U.S. attorney’s office.”

The deputy United States attorney, Richard B. Zabel, responded by citing the detailed allegations in an indictment released, which included as exhibits “two contradictory contracts signed by Khobragade, one of which the indictment alleges was used to deceive the U.S. government and is there for the public to see,” Mr. Zabel said. Zabel said that the charges remained pending against Khobragade, that she was presumed innocent and that she was “free to exercise her constitutional right to put the government to its proof in a court of law. There, as always, we will have the burden of proving the charges in the indictment beyond a reasonable doubt,” he said, adding that the office would “welcome the opportunity.”

Clip_11Then Arshack said, he got a call from Khobragade, who was about to be driven to the airport for a 2:25 p.m. flight. He called the State Department, saying he would not allow her to leave without the court’s permission. He says neither he nor his client, who was free on bond, wanted it to appear that she was fleeing the country, when in fact she was leaving because she was obligated to.

Arshack said he told Khobragade to stay inside her vehicle when it got to the airport. He said he then called two investigators, who had been working for him on the case, and had them drive to the mission and follow her on the way to the airport.

If Indian officials tried to compel her to leave the vehicle, Arshack recalled telling his investigators, they should take her to the Manhattan federal courthouse, where he was heading.

At 3:33 p.m., Bharara’s office released the indictment charging Khobragade with fraudulently obtaining a visa for Richard, saying she had “illegally underpaid and exploited” her and tried to “silence and intimidate” her and her family.

But two prosecutors, Amanda Kramer and Kristy Greenberg, wrote the court that no arraignment was needed because Khobragade had “very recently” received diplomatic immunity.

At 4:40 p.m., Arshack and the prosecutors appeared before Judge Shira A. Scheindlin, who found that Khobragade would not be “violating any conditions of her release” by immediately returning to India. “So, that problem is resolved,” the judge said.

By then, Khobragade’s Air India flight had left without her; she caught a plane later that night.

The indictment, handed up in Federal District Court in Manhattan, also charges Khobragade of trying to “silence and intimidate the victim and her family and lie to Indian authorities and courts.”

The decision by Preet Bharara, the United States attorney for the Southern District of New York, to seek the indictment indicated that negotiations to try to resolve the case through a plea bargain had broken down.

“She is pleased to be returning to her country,” he added. “Her head is held high. She knows she has done no wrong and she looks forward to assuring that the truth is known.”

Sangeeta Richard said in a statement issued through Safe Horizon, a victim services agency that had been representing her, “I would like to tell other domestic workers who are suffering as I did — you have rights and do not let anyone exploit you.”

Richard had run away from Devyani and ultimately turned to Safe Horizon, which helps trafficking victims.Almost immediately, Khobragade and others took steps to prevent her from communicating with lawyers and others, the government charged.

The indictment describes a series of efforts to intimidate Richard and her family. It says Khobragade and a relative repeatedly called Richard’s husband in India, pressuring him to disclose her location in New York. hobragade also took legal action in India against Richard. In November, based on a complaint by Khobragade, an arrest warrant was issued in India charging Richard with extortion and cheating.

Arshack has called the charges against Khobragade “false and baseless.”

Bharara’s office, writing to a federal judge said that the criminal charges against Ms. Khobragade would remain pending. “We will alert the court promptly if we learn that the defendant returns to the United States in a nonimmune capacity,” the prosecutors told Judge Shira A. Scheindlin, “at which time the government will proceed to prosecute this case and prove the charges in the indictment.” 

Tell this dull diplomat that India was built on the very hopes and dreams of people like the maid she resents now. 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 238 other followers

%d bloggers like this: