America scolds Pakistan for having arrested a Consulate security guard for committing double murder in broad daylight. Did he do this in his line of duty?

Raymond Davis working for the US government, arrested in Pakistan for the murders of two young Pakistani men on January 27, 2011.

The Killer ‘Diplomat’
On the crispy afternoon of January 27, in crowded downtown Lahore a guy, who later identified himself as Raymond Davis and technical advisor at the US Consulate, Lahore, created a furor by fatally shooting two young motorcyclists riding ahead of his car. He fired 9 bullets from his Beretta with deadly accuracy of a trained marksman, belying the geeky description that he gave about the nature of his job. He fired five bullets through his windshield and pumped four bullets into the boys as they lay on the ground breathing their last, after he exited from his car. He called the US Consulate for back up, calmly photographed the bodies with his cell phone but panicked when he saw the crowded turning hostile and fled in his car, losing his way in the downtown area.

The police soon caught up with him, took him into custody along with his belongings and his car, which was found to be locally rented.

The backup consulate vehicle driven by another American, that got stuck in the crowd at the scene of the shooting crossed over the road divider and drove at high speed against the traffic, in the process running over and killing another motorcyclist. Finding that Davis was gone, it took a U-turn and sped away.

An Undercover Rambo
Items recovered from Davis’s car included, in addition to the unlicensed Beretta he was holding, a loaded unlicensed Glock handgun along with a bucket load of bullets for both guns, three full magazines, a load of M16 shells, GPS tracker, several mobile phones, a satellite phone, wireless sets, survival kit, small telescope, mask, military-grade knives, a wire cutter, a collection of batteries and a mutually exclusive array of business cards. One of these cards listed him as working out of the Peshawar Consulate, another listed him as a defense department contractor and yet another as an employee of a (unregistered and nonexistent) security company called Hyperion-Protective Consultants LLC, with its address as 5100 North Lane, Orlando, Florida. Later, upon inquiry this premises was found to be a closed clothing store in a rundown mall that has been vacant for several months and whose telephone numbers did not respond.

"Profoundly puzzling and disturbing was the camera recovered ..."

Profoundly puzzling and disturbing was the camera recovered from him loaded with pictures of dozens of madrassas (religious schools) and other sensitive buildings in and around Lahore. Such places have been in the past or are likely to be the targets of terrorism and his interest in such locations, when viewed in conjunction with his demeanor, dubious credentials and questionable items recovered from his car, including a bundle of cash drawn from ATM and all those cell phones that are generally used as bomb detonators by terrorists, point to his involvement in some kind of covert US program to finance or orchestrate subversive activities that have recently resulted in the spate of bomb blasts in the country.

Arrest & Investigations
Davis was arrested on two counts of murder, and despite protests by the US Embassy and the State Department which insisted that he is a “consular official” responsible for “security,” he continues to be held for trial.

Davis initially told the police that he shot the two men in self-defense because they had pointed their guns at him to rob him. This statement was splashed by the State Department and the US media. It was later changed and he said he shot them because “he believed that the men were armed”, believing that his life was in danger.

Having completed its investigations, the Punjab police submitted a provisional charge-sheet in the court for proceedings under Section 302 of Pakistan Penal Code for premeditated murder. Whether or not this was to the liking of the Zardari central government, who was looking for ways to oblige Washington, the Rubicon was crossed and the trial has begun.

Punjab police chief Tareen told the media last Friday:

"We have proof in the form of eyewitness accounts and forensic reports that it was not a case of self-defense. Rather it was a clear murder. He [Davis] gave no chance of survival to them."

He further said that although the motorcyclists carried licensed pistols, there were no bullets in the chamber and no fingerprints on the trigger, which showed that the gun had not been pointed at Davis. One of the boys was shot in the back as he tried to flee, Tareen said.

Davis is reported to have told the police that he was a technical advisor at the Consulate and this was his 10th visit to Pakistan. Tareen did not answer questions about the purpose of Davis’s visit to the congested area of Mozang and Davis has reportedly not so far explained why he was driving alone and so heavily armed. One US official conceded he was not authorized to carry any weapon as required by law.

The Case of Mysterious Identity
The real identity of Raymond Davis became a mystery. There were hints that Raymond Davis was actually his cover name. The embassy and the State Department first said he was a security advisor at the Lahore Consulate but then on second thought called him a US Embassy employee entitled to diplomatic immunity. The mystery deepened when the Americans later refused to confirm or deny his real name and identity, to confirm his actual station of duty and explain the nature of duties he was performing to justify the immunity they claimed.

They also refused to identify and hand over the driver and the vehicle that crushed the motorcyclist.

How Dare You Arrest our Man?

"The US Consulate refused to hand over the vehicle and the driver that killed a motorcyclist for investigation."

Apparently concerned that Davis’s continued detention and interrogation might blow his cover and expose his dubious activities, the attitude of State Department became extremely arrogant, harsh and bullying. It scolded the government for Davis’s arrest, stonewalled the police investigation into three deaths, refused to accept the writ of the Pakistan government over a criminal of American origin and refused to recognize the jurisdiction of Pakistani courts to try him. Their demand: he should be released forthwith without trial.

Despite repeated demands by Punjab government, the Consulate refused to hand over the vehicle and the driver that killed a motorcyclist for investigation. It is now confirmed that he was smuggled out to the US in violation of the Pakistan’s law.

The attitude of the American administration and the embassy was also callous. No regrets were expressed over the brutal killings, no condolences were conveyed to the families of the deceased and no concern was shown for public sentiment. The only sentiment it showed was anger at the delay, murder or no murder.

The Americans conveyed a feeling that the three dead persons were no more than partridges bagged in an afternoon hunt.

Diplomatic Standoff
Whatever happened in the span of those 30 minutes on January 27 it led to a diplomatic standoff between the US and Pakistan. In an internal exercise to determine Davis’s immunity, Foreign Minister Shah Mahmood Qureshi was advised by experts in his ministry that there were neither any papers nor grounds for grant of diplomatic immunity to Davis. Accordingly, Qureshi apprised both Zardari and Hillary Clinton. Confidential information says that the Americans wanted foreign office documentation to be manipulated for grant of backdated diplomatic status. While Zardari was inclined to oblige, Qureshi refused.

Clinton was enraged. Although this was not officially linked to Davis incident, Washington suspended all high level contacts with Islamabad, called off crucial trilateral talks of Pakistani, Afghani and the US foreign ministers and called off a planned meeting between Clinton and Qureshi on the sidelines of the 47th Munich security conference. It was conveyed to Zardari that his upcoming visit to Washington was now uncertain and that Obama’s planned visit to Pakistan might not go through. In an extraordinary move, President Obama himself intervened by calling for Davis’s release.

Pakistan’s ambassador was summoned and threatened by the National Security Advisor that he will be kicked out if Davis is not handed over to the US. Threats of suspension of economic aid and future cooperation were given amid indications that the strategic alliance between the two countries was also at risk.

Apparently Clinton was ill advised to pursue such an abrasive policy in full public view. Although the intention was to intimidate Zardari into submission, the factor of public opinion that could prevent him from obliging the US administration was ignored.

What Is America Trying To Desperately Hide?
For a low ranking contractor - a mere security guard (that is what his title actually translates into) who had admitted having committed the capital offence of killing two people, this is pretty heavy pressure. The kind of sound and fury the Americans were engaging in signified that there was more to it than the concern for a lowly guard.

"Why is this man so important that they are ready to sacrifice a 60-year old relationship and a strategic partnership?"

This, therefore, raises a lot of questions. Why is the State Department so nervous and jittery with Davis being held in the custody of Pakistani authorities? What secrets are the Americans afraid of being revealed by him? Why is this man so important that they are ready to sacrifice a 60-year old relationship and a strategic partnership? Do they want to block his trial at all costs because of the risk of his explosive confession that he killed those boys in his line of duty, an admission that would implicate the State Department, CIA and other US agencies? Was it these considerations that warranted the intervention by the President of the United States?

Pak-American Relations
And if none of the above was the case, the American response simply did not make sense. By bullying Pakistan the Americans undermined its sovereignty on an issue in which it had no legs to stand on. It provoked Pakistanis to rise against the American diktat with one voice, which has cornered an unpopular pro-American government, hurting America’s own interests. Pakistanis are reminded once again, so soon after promises were made for a lasting friendship, that Pak-American relations, like always, hang by a thread and Pakistan can be jettisoned any time if it refuses to fall in line when dictated or when the American interests have been served, enormous sacrifices made by Pakistan notwithstanding.

Although most people believe these to be empty threats, the question now being asked in Pakistan is: if the US wants to end the strategic partnership with Pakistan merely on this issue, which President Obama was so keen to strengthen few months back knowing its implications for the US in Afghanistan, why shouldn’t Pakistan move towards ending all kinds of cooperation with the US and its dependence on the IMF and World Bank to be able to stand on its own feet, get rid of unreliable partners and preserve Pakistan’s sovereignty and dignity.

Diplomatic Immunity Under Vienna Convention?
The US officials vehemently insist that Davis, as a functionary of the Consulate, enjoys a blanket diplomatic immunity under Vienna Convention and must get immunity from trial, but have not been able to establish their claim. Instead, they have gone on to accuse Pakistan of violating the Vienna Convention. A simple reading of the Convention would show that the US position is utter nonsense.

"Whether Davis has diplomatic immunity hinges first and foremost on whether he is actually a “functionary” of the consulate."

Whether Davis has diplomatic immunity hinges first and foremost on whether he is actually a “functionary” of the consulate. Notwithstanding the claims of the US Embassy, Davis was carrying a regular US passport with a business visa when arrested. The embassy is said to have later produced another passport of him with diplomatic visa, the authenticity of which appears doubtful after the statement of former foreign minister Qureshi, who categorically stated that the foreign office has no documentation to establish this man as a diplomat or that he was ever granted diplomatic privileges. This evidence is believed to have been conveyed to US officials and Senator John Kerry visited Pakistan a few days back to seek Davis’s release after which the tone and tenor of the US administration has softened somewhat. Other factors that disprove the US claim for diplomatic immunity are listed later in this piece.

The Vienna Convention that the US officials quote in support of their claim does not provide absolute immunity. It is conditional. Article 38 of the Vienna Convention 1961 states that,

“except where additional privileges and immunities have been specifically granted by the host State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.”

This article differentiates between an act carried out as part of his official duties and one that is done in his personal capacity. Any personal actions that lie outside the ambit of official consular duties shall not be covered by "diplomatic immunity."

Article 37 of the 1961 convention reinforces the above limitation on immunity by stating:

“..…Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties”.

If Davis claims diplomatic immunity from arrest and trial for the crime of a double murder, he will have to prove, firstly, that he fulfills the conditions and possesses necessary documentation to qualify as member of diplomatic staff of the US Embassy, and secondly, even if he qualifies, then he should admit that he carried out the killings while performing official duty.

The US State Department intentionally avoids the mention of a later treaty, the Vienna Convention on Consular Relations of 1963, which further clarifies in Section II, article 41:

“… And where there may be a conflict, this would supersede the earlier treaty”. It goes on to say that: “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”.

The Vienna Convention, therefore, quite clearly states that Pakistani authorities are perfectly within their rights to arrest, investigate and prosecute Davis for a grave crime (and murder is as grave as crime can be) that he perhaps committed in his personal capacity.

Pakistan’s Foreign Minister is shown The Door
Incidentally, this episode occurred when the federal cabinet was being reshuffled. Due to his old political rivalry with the prime minister, Foreign Minister Qureshi, was conveniently eased out in the process. This served another purpose too. The head of a defiant foreign minister was presented to Secretary Clinton to please her.

Qureshi settled his scores by spilling the beans to the media about the negative conclusions that the foreign office had internally arrived at while determining Davis’s diplomatic status. This has made it impossible for Zardari’s men to now fudge the documents.

Did Davis Enjoy Diplomatic Status?
Evidence that is now public shows that Davis was not issued a diplomatic visa to begin with but a business visa. He was not assigned to the embassy in Islamabad, as was being claimed, but was moving between the consulates. His nature of duty was never provided to Pakistan’s Foreign Office for determination of his status despite reminders and all that was known was that he was a technical advisor (security guard). His case was not among the cases submitted by the US Embassy to the foreign office as late as one day before the murders for grant of diplomatic status. And he did not hold the ID issued by foreign offices to diplomats – a universal practice.

The Angry Pakistanis
A survey for ‘al Jazeera’ by Gallup Pakistan found 70% Pakistanis holding America to be the greatest threat to Pakistan’s sovereignty. Another survey in mid 2009 by the Washington-based Pew Research Center found that 64% of Pakistanis regard America as an enemy, only 9% believing it to be a partner. In another recent poll by World Public Opinion, Pakistan’s perception of the U.S. under the Obama administration was found not substantively different from that of the U.S. under Bush. Only 30% of Pakistanis showed any confidence that the U.S. president would do ‘the right thing regarding world affairs’.

People in the street blame America for all of Pakistan ills. They cite a pattern of deceit, exploitation and misuse of trust by America over five decades. They perceive America to be an arrogant, war mongering super power which, propelled solely by its global agenda and imperial hubris, foments trouble, attacks and destroys people and countries. They are also angry with the US for misusing Pakistan in its war on terror and have been demanding immediate end to illegal drone attacks that violate Pakistan’s sovereignty and have claimed hundreds of civilian lives in FATA area, towards which the US shows no concern.

In this backdrop, the Raymond Davis incident proved to be a flashpoint. People were enraged, firstly, because an American killed two Pakistanis in cold blood, secondly, because the US administration instead of showing any remorse, began bullying Pakistani government for investigating the murder and pressurizing it to release him forthwith, and thirdly, because it once again brought into focus the threat to Pakistan’s security at the hands of the ill-reputed Blackwater and DynCorp.

"US contractors ... deploy spies, murderers, terrorists, thugs and rogues under the guise of diplomats to render illegal service for money, including kidnapping, torture, murder, sabotage..."

Coming as it did at a volatile time when the Arab world is rocked by uprisings against corrupt and incompetent US-backed autocracies and when the need for a similar revolution in Pakistan is being openly encouraged by the civil society leaders who draw a parallel with conditions in those countries, the Davis episode has proven to be extremely dicey for Zardari government. On the one hand its tail is being twisted by Washington and on the other the people are ready to lynch it if it succumbs to Washington’s pressure. Prime Minister Gilani admitted this when he said his government is between the devil and the deep sea.

Concerns About Pakistan’s Security
Again into focus has come the issue of dangers to Pakistan’s security at the hands of US defense contractors who deploy spies, murderers, terrorists, thugs and rogues under the guise of diplomats to render illegal service for money, including kidnapping, torture, murder, sabotage, etc., acts that the US Constitution prohibits the US government to engage in.

In Pakistan, Blackwater operatives have long been reported to be positioned. Jeremy Scahill, author of the NYT Best Seller Blackwater, in his article “The Secret US War in Pakistan” states:

“At a covert forward operating base run by the US Joint Special Operations Command (JSOC) in the Pakistani port city of Karachi, members of an elite division of Blackwater are at the center of a secret program in which they plan targeted assassinations of suspected Taliban and Al Qaeda operatives, "snatch and grabs" of high-value targets and other sensitive action inside and outside Pakistan.”

It is now clear that Davis, 36, a former US Special Forces operative, is either a CIA agent or an employee of a mercenary firm--possibly Xe, the reincarnation of Blackwater. Jeff Stein, quoting Fred Burton, a veteran of the State Department’s counter-terrorism Security Service, wrote in the Washington Post on January 27, that Davis may have been involved in intelligence activity, either as a CIA employee under embassy cover or as a contract worker at the time of the shootings. Burton, who currently works with Stratfor, a Texas-based “global intelligence” firm, even speculates that the shootings may have been a “spy meeting gone awry,” and not, as US Embassy and State Department officials claim, a case of an attempted robbery or car-jacking.

Or was it that Davis was on a mission to contact such a group and felt threatened by the motorcyclists whom he thought to be intelligence agents tracking him, whom he could not shake off and killed them? Perhaps he had crossed the red line and feared being exposed.

Blackwater affiliates are said to be honeycombed with CIA, US Joint Special Operations Command (JSOC), Pentagon and State Department in conducting a variety of operations. It is also perceived by the people and the media to be involved in supporting the agenda of destroying the fabric of Pakistan’s nationhood through suicide bombings, fanning religious extremism and supporting nationalist and separatist movements, using Pakistanis whose loyalties are up for sale.

There is a strong indication that Tehrik-e-Taliban Pakistan (TTP) and other terror groups are acting as fronts for the American contractors assigned the job of destabilizing Pakistan. It is now common knowledge that Zardari had buckled under US pressure and personally authorized visas to hundreds of dubious Americans in connivance with Haqqani, an American stooge of a Pakistani Ambassador in Washington, bypassing the foreign office and the verification process. Raymond Davis is apparently one such case.

Zardari’s Woes
Rising political temperature caused the government’s coalition partners to distance themselves from Zardari for fear of public backlash. Then there was a hostile media coupled with rightist-led nationwide rallies, potentially getting out of hand, which demanded Davis’s trial.

The Americans showed poor understanding of Pakistan’s ground realities and of the limitations of the government of President Zardari, who is seen as an American poodle. The condescending American attitude and information that Davis was neither a diplomat nor entitled to immunity, evoked hostile response across the country. All this has unnerved Zardari.

Shumaila Kanwal, the 18 year old widow of man killed by Raymond Davis lay dying in a local hospital in Faisalabad after she committed suicide when she saw no chance of getting justice for her husband's killer. A family member and nurse are at her side.

In the middle of this debate, the situation took another dramatic turn when the 18-year old widow of one of the slain persons committed suicide because she saw no chance of getting justice and every chance of this American getting away with murder. Her last words on her death bed were: “I want justice done. I want blood for blood”.

This left Zardari and his ilk with no choice but to perforce abandon their earlier position on immunity and, denying that they were under American pressure, publicly took the stand that Davis’s case is for the courts to decide. But the foreign office has still not publicly stated the correct position on the immunity issue, in the hope that some way might eventually be found to oblige the US.

Is There A Way Out?
Currently there is an impasse. Public pressure leaves no room for any compromise. The U.S. State Department, having mishandled the issue now needs to act more sensibly and back off to let the temperature cool down. More threats would further worsen an already bad situation. John Kerry, a seasoned and soft spoken politician, hurriedly visited Pakistan offering belated condolences and expressing remorse at the loss of life, but this was too little too late. He could only extract promises which a weak Zardari government would find hard to deliver.

Suggestions were floated to explore the option of blood money in exchange for pardon with the consent of the family, a provision that exists in Pakistani law. This has been rejected by the family which is also under pressure to stand firm on Davis’s prosecution. The president also has the powers to grant pardon to a convict, but only after the whole process of law has taken its course. Nothing can be achieved in a hurry. The Americans overplayed their cards and now need to show patience, whatever the cost.

Aafia Siddiqui’s Case
Among the many things that Pakistanis hold against the US is the recent case of Dr. Aafia Siddiqui, a Pakistan neuroscientist. This woman was abducted from Karachi, apparently by CIA, and taken to the US for trial on charges of attempted murder of an American serviceman while she was in custody in Kabul. After a sham trial she was sentenced to 86 years in prison, an unusually harsh sentence by any standard.

Dr. Aafia Siddiqui, a Pakistan neuroscientist studied at MIT in Cambridge, MA. She was abducted by the US and held incommunicado for 5 years in Afghanistan before being taken to New York for trial.

Dr. Siddiqui, after her shameful arrest and torture during imprisonment and interrogation by US authorities. She is now languishing in a US prison, sentenced to a term of 86 years.

There was public uproar. The popular demand to allow her to serve her sentence in Pakistan on humanitarian grounds was rejected. There is now unanimity of view that if the Americans can be so callous, the Zardari Government has no business of showing any leniency to Davis.

A suggestion about exchanging Raymond Davis for Aafia was quickly rejected by the American authorities. This does not appear to be a suitable option for now from Pakistan’s standpoint too. Firstly, Davis is not a convict yet and it is important that charges against him are first proved in the court of law to set the record straight. Secondly, Pakistan must not agree to Davis’s premature release before extracting information about his activities in Pakistan and those of other members of his network. It is imperative for the government to come down heavily on the likes of Davis, American pressure or no pressure, to bring an end to terrorism that has destroyed peace and stability in the country.

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Axis of Logic Columnist, Shahid R. Siddiqi