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Shades of WikiLeaks Controversy|in Fallout Over Indicted Diplomat

MANHATTAN (CN) - Former Assistant U.S. Secretary of State P.J. Crowley, who resigned after condemning the treatment of WikiLeaks source Chelsea Manning at a Marine Corps prison, likened the blowout of that case to the strip search of an Indian diplomat accused of committing visa fraud to exploit her maid.

U.S. Diplomatic Security Service agents arrested Devyani Khobragade, a former deputy consul general, in New York last month for allegedly committing visa fraud to exploit her maid Sangeeta Richard.

Transferred into the custody of U.S. Marshals, Khobragade was subjected to a strip search that stoked diplomatic controversy and protest under the Vienna Conventions.

The diplomatic fallout of Khobragade's arrest flared up again Thursday as federal prosecutors formally lodged visa fraud and false statement charges against her. The indictment alleged that Khobragade had forced Richard, identified in the complaint as "Victim-1," to work 100 hours a week at $1.42 per hour until she fled, at which point Khobragade allegedly harassed the maid's husband and family in India.

Facing charges punishable with up to 10 years in prison, Khobragade returned to India under cover of diplomatic immunity that evening, and her charges are still active although she maintains her innocence. Her lawyer Dan Arshack insisted that Khobragade fulfilled a lawful contract for $9.75 per hour for a 40-hour workweek and that Richard received that amount.

"These baseless allegations are designed to support a meritless application by the domestic worker to remain in the United States, which, remarkably, has been achieved," Arshack said in an email.

A five-year statute of limitations for most federal crimes is unlikely to benefit Khobragade since she was already charged and fled to avoid prosecution. Meanwhile the diplomatic and societal fallout over her arrest is ongoing.

India's Legislature, for example, has taken a number of retaliatory steps against U.S. diplomats - some major, some petty. It withdrew some police protections from the U.S. Embassy, restricted or canceled deliveries of alcohol to the U.S. mission there, restricted visitors to the U.S. mission, and allegedly began investigating children and parents of U.S. officials for their own visa status and authorization to attend Indian schools.

The tit-for-tat measures escalated on Friday when the Indian government expelled a U.S. diplomat accredited to the Mission India, State Department spokeswoman Jen Psaki confirmed at a press briefing on Friday.

Crowley complained in a BBC editorial that both sides missed opportunities to resolve the crisis through "bureaucratic and diplomatic negligence."

Stepping up those criticisms on his Twitter account and in an interview, Crowley noted that the U.S. had warned India about Khobragade as early as September, months before her arrest, but that India failed to react.

The United States, on the other hand, miscalculated in terms of "public diplomacy," Crowley said, adding that he now teaches the subject at George Washington University.

"In a globalized and networked world, these issues don't stay behind closed doors," he said in a phone interview. "They play out on the front pages of major newspapers. They play out in real time, and sometimes events get defined and bureaucracies are forced into catch-up mode."

Several days had passed by the time U.S. Attorney Preet Bharara framed the Dec. 12 arrest of Khobragade as a blow against the mistreatment of domestic workers.


Though Bharara described the strip search as "standard practice for every defendant, rich or poor, American or not" in that Dec. 18 statement, that strip search had already defined Khobragade's arrest, Crowley explained.

In this sense, Crowley said Khobragade's case echoes his own experience with the court-martial of Manning, who is currently serving a 35-year sentence in connection with the biggest intelligence leak in U.S. history.

Crowley resigned from his position as State Department spokesman in March 2011, after telling reporters that Manning's treatment at a Marine Corps brig in Quantico, Va. was "ridiculous and counterproductive and stupid," following a New York Times report that Manning had been subjected to forced nudity and solitary confinement.

Speaking of that today, Crowley said that Manning's treatment there coupled with the "judicial overreach" of the prosecution's pursuit of an "aiding the enemy" charge made the WikiLeaks source a "far more sympathetic figure than was appropriate."

"The prosecution was important, but how we did it mattered," Crowley said, referring to both Manning and Khobragade.

He said that Khobragade's arrest by Diplomatic Service agents, strip search by U.S. marshals and indictment by the U.S. Attorney may have conformed to their rules without being diplomatically wise.

"Was an indictment the best mechanism to make the kind of statement that the United States perhaps wanted to make of the importance of human rights and combating human exploitation?" he asked. "The answer is, perhaps, but obviously, it did not turn out the way the United States had originally anticipated."

The U.S. Marshals Service, meanwhile, defends its decision by pointing to internal policy directives detailing the rules covering four categories of searches: pat-downs, in-custody searches, strip searches and digital-cavity searches. A strip search includes a "complete search of a prisoner's attire and a visual inspection of the prisoner's naked body, including body cavities," according to the directives.

Typically, marshals must justify the procedure by their "reasonable suspicion that the prisoner may be (a) carrying contraband and/or weapons, or (b) considered to be a security, escape, and/or suicide risk," the document states.

The directives provide an exception, however, for the "type and security level in which a prisoner is detained." Khobragade was booked at a cellblock at the Daniel Patrick Moynihan U.S. Courthouse, where every prisoner is subject to a strip search, U.S. Marshals spokeswoman Nicki Credic confirmed.

The U.S. Supreme Court's approval of blanket jailhouse strip-search policies in 2012 has not staunched criticism that the practice is invasive and unconstitutional.

Since that decision, the D.C. Circuit dismissed one challenge to such searches, but a federal judge in Pennsylvania bucked the tide by finding that one jailhouse's policy may be "unnecessary or unjustified."

Retired diplomat Brady Kiesling, who spent two years as a desk officer for India at the State Department during his two-decade career in the Foreign Service, said that the problem was with the letting a diplomat go through the "'routine' procedures," sounding out the scare quotes.

"The fact that Americans' civil liberties are routinely violated in a courthouse in New York is something that should upset everyone, not just something that should just upset the Indian public," Kiesling said.


Indian history, politics and culture in particular made the case ill-suited for the "implacable and inflexible" U.S. criminal justice system, he added.

Kiesling said his tenure taught him that Indian diplomats are "very highly trained" and "highly legalistic," and tend to interpret perceived slights through the lens of colonialism. The fact that Khobragade rose from the historically underprivileged dalit caste of "untouchables" into the "highly competitive" Indian Foreign Service has also complicated things, he added.

"In Indian politics, caste plays a huge role, and her fate is being embraced by political parties that are caste-based as proof that the Congress party is not adequate in protecting the interests of lower castes, and so this becomes an Indian domestic political dispute," he said. "This gets tough because the prosecutor [Bharara] is an Indian-American himself, which causes great confusion, and the fact that an Indian former untouchable can get very wealthy, underpay her servants and do all kind of things like that is one of the paradoxes of the situation. Indian politicians don't mind paradox. You don't have to be consistent, but you have to show your caste commitments."

Keisling defended the United States' decision to oppose forced labor but said it should have performed these maneuvers behind closed doors.

"The case was an opportunity to raise with the Indians: You have to pay your people. You cannot treat them as slaves," Kiesling said. "But it should have been done at a high level but completely privately with the very explicit threat, 'If you don't fix this, she goes home, and the next person who does it goes home too.'"

Former U.S. Ambassador to India David Mulford labeled the Indian government's refusal or inability to rein in human trafficking one of the "Irritants That Plague This Partnership" in a Jan. 8, 2008, secret cable disclosed by WikiLeaks.

The cable describes a warning by then-Ambassador Mulford to India that it needed to do more to combat "modern day slavery" or face the lowest ranking on its annual Trafficking in Persons (TIPs) report, an issue that the department has monitored since 2001.

India threatened to retaliate if it dropped to Tier 3 status, Mulford warned.

"If India is truly to become a great power - a key presidential goal - its government will need to shed its traditional petty zero-sum mentality," the cable concluded.

In 2009, India ultimately remained on the Tier 2 watch list.

The State Department's latest report assigned India a slightly higher Tier 2 ranking but still warned: "The government did not report on steps taken to investigate an Indian consular official accused of forcing a domestic worker to work for him in the United States without adequate compensation for three years and subjecting her to physical and mental abuse, as noted in the 2012 TIP Report."

This appears to refer to Indian consular official Neena Malhotra, whom a federal court ordered to pay roughly $1.5 million for allegedly exploiting her maid for three years. Malhotra allegedly seized her maid's passport and threatened to have the woman "arrested, beaten, raped, and sent back to India as 'cargo,'" if she fled, according to a default judgment dated March 16, 2012.

Khobragade's attorney Arshack noted that Malhotra was never arrested for "terrible, terrible behavior not claimed" against his client.

"There's a way to do these things," Arshack said, referring to civil prosecution.

The Indian government has shielded Malhotra, however, who has not paid a dime of that judgment, WNYC reported.

In a much more successful criminal prosecution, Taiwanese diplomat Hsien-Hsien "Jacqueline" Liu was suspended for "seriously damaging her country's reputation" when FBI agents arrested her for allegedly exploiting a Filipino servant through fraud, Diplopundit reported.

In assigning Taiwan a Tier 1 nation in its most recent TIPs report, the State Department wrote: "Taiwan authorities continued robust and transparent prosecution of trafficking offenses, including both forced labor and forced prostitution."

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