Do Curtains draw?
NEW YORK, NY (TIP): The US has dismissed charges against Indian diplomat Devyani Khobragade, but prosecutors suggested they might refile the charges stemming from claims she exploited her housekeeper. For now, at least, March 12 ruling closes the case against Devyani Khobragade on the grounds of diplomatic immunity.
The judge found Khobragade had broad immunity from prosecution when she was indicted on charges of fraudulently obtaining a work visa for her housekeeper and lying to the government about the maid’s pay. But the ruling left open the possibility prosecutors could bring a new indictment against her, and they “intend to proceed accordingly,” said James Margolin, a spokesman for Manhattan US Attorney Preet Bharara.
Margolin said in a statement post verdict, March 12,”The District Court found that Devyani Khobragade had immunity during a limited period of time between January 8 and January 9, when the indictment was returned by a grand jury. As the court indicated in its decision and as Devyani Khobragade has conceded, there is currently no bar to a new indictment against her for her alleged criminal conduct, and we intend to proceed accordingly.” Khobragade’s attorney, Daniel Arshack, said the former deputy general consul, now back in India, was pleased by the ruling.
“She is heartened that the rule of law prevailed,” he said, adding that a new indictment “might be viewed an aggressive act and one that (prosecutors) would be ill-advised to pursue.” Khobragade was arrested in December, with prosecutors saying she claimed she paid her Indian maid $4,500 per month to get the woman a visa but actually paid her less than the US minimum wage. Prosecutors said the maid received less than $3 per hour for her work. The arrest outside Khobragade’s daughter’s Manhattan school created outrage in India, particularly because of the strip-search.
The US Marshals said Khobragade was treated no differently than others who are arrested. Bharara said Khobragade was arrested discreetly, given coffee and offered food while detained and afforded courtesies most Americans wouldn’t get, such as being allowed to make phone calls for two hours to arrange child care and sort out personal matters. Bharara, who was born in India but moved with his family to the US, also said Khobragade wasn’t handcuffed, restrained or arrested in front of her children. Still, many in India saw the arrest as unnecessarily humiliating. Indian National Security Adviser Shivshankar Menon called the treatment “despicable and barbaric.” Khobragade had pleaded not guilty.
Indian officials said the housekeeper had tried to blackmail the diplomat, which the housekeeper’s advocates disputed. The episode chilled US-Indian relations, and India took such steps as removing concrete traffic barriers around the US Embassy and revoking diplomats’ ID cards. US Secretary of State John Kerry called a top Indian official to express his regret over what happened. After being indicted, Khobragade complied with a Department of State request to leave the US. The Indian government then asked Washington to withdraw a diplomat from the US Embassy in New Delhi. The US complied. Wednesday’s ruling centered on the complexities of different levels of legal protection afforded to diplomats.When Khobragade was arrested, US officials said her status as a consular officer provided immunity limited to acts performed in the exercise of official functions.
She disagreed, and then, on the day before her 9 January indictment, she got a new appointment that conferred wider immunity. Regardless of Khobragade’s status when she was arrested, her later appointment gave her immunity when indicted and means the case must be dismissed, US District Judge Shira Scheindlin wrote. And while Khobragade’s immunity ended when she left the country, the indictment still could not stand, the judge wrote. The judge said that mooted the question of whether the crimes Khobragade was accused of committing would have been considered “official acts” covered by the earlier, more limited immunity. If not, the judge wrote, “then there is currently no bar to a new indictment against Khobragade.” Since Khobragade does not have immunity now and courts have yet to settle what protection she had when arrested, that leaves a potential path for a new indictment, though any new case might be complicated by Khobragade’s absence from the US. She is in New Delhi, continuing to work for the government in foreign affairs, Arshack said.
“She’s hugely frustrated” by her arrest and prosecution, he added. In another statement, refuting the perception that Preet Bharara is targeting Indians, James M. Margolin, Chief Public Information Officer, United States Attorney’s Office, SDNY, said, March 12 late afternoon: “Regarding the perception that Preet Bharara is “targeting Indians,” I would note that the US Attorney’s Office does not “target” any group of individual. The Office prosecutes people for whom there is evidence of criminal conduct. A very small percentage of defendants in cases brought by this office happens to be Indian or of Indian descent, but their ethnicity or national origin has nothing to do with why they are prosecuted.
Nor does ethnicity, national origin, religion or any other demographic characteristic have any bearing on the prosecution of any of the hundreds of other defendants prosecuted by this Office every year. And the U.S. Attorney himself does not suggest charges or decide to bring them; cases are investigated and brought by law enforcement agents working with the prosecuting attorneys in our Office.” Commenting on the dismissal of Indictment of Devyani Khobragade, eminent attorney Ravi Batra said, “Judge Scheindlin’s Order today vindicates both judicial independence and judicial excellence – she rightly acknowledged the immunity that India’s FM Khurshid negotiated with our State Dept in January and it’s consequential effect on the Indictment unsealed on January 9th. What is also clear is that on December 12th, when Devyani was arrested, she did not enjoy immunity from the arrest. One can only hope that US Attorney Preet Bharara’s exercise of prosecutorial discretion results in not re-indicting Devyani.
There has been enough pain and suffering bilaterally, and we need these two countries to re-join the call of destiny: to help form a more perfect world.” Meanwhile, George Abraham, Chairman, INOC, has applauded the decision to dismiss the indictment against Devayani Khobragade in the visa fraud case with the ruling that she had full diplomatic immunity. ‘Whatever the merit of the case, it has become a major irritant to the USIndia relationship and something had to happen to resume normalcy’ said Mr. Abraham. ‘We hope that this court decision will just do that’.
In a major relief for 39-year-old Khobragade that came exactly three months after her arrest, District Judge Shira Scheindlin said in her 14- page order “it is undisputed” that the diplomat acquired full diplomatic immunity at 5:47 pm on January 8 after the US State Department approved her accreditation as a counselor to India’s mission to the UN. ‘US-India friendship and strategic partnership is too important in the global arena to be frozen in place due to some squabbling over a visa issue. INOC applauds the US State and Justice Department in reaching at the proper decision to diffuse the whole issue so that they could reengage in a more serious conversation of the shared values of both nations and work together in the global arena to advance the cause of peace and upward mobility for all its citizens.’ The statement continued.