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Russiagate Investigation Now Endangers Obama

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Former U.S. President Barack Obama is now in severe legal jeopardy, because the Russiagate investigation has turned 180 degrees; and he, instead of the current President, Donald Trump, is in its cross-hairs.

The biggest crime that a U.S. President can commit is to try to defeat American democracy (the Constitutional functioning of the U.S. Government) itself, either by working with foreign powers to take it over, or else by working internally within America to sabotage democracy for his or her own personal reasons. Either way, it’s treason (crime that is intended to, and does, endanger the continued functioning of the Constitution itself*), and Mr. Obama is now being actively investigated, as possibly having done this. The Russiagate investigation, which had formerly focused against the current U.S. President, has reversed direction and now targets the prior President. Although he, of course, cannot be removed from office (since he is no longer in office), he is liable under criminal laws, the same as any other American would be, if he committed any crime while he was in office.

A December 17th order by the FISA (Foreign Intelligence Surveillance Act) Court severely condemned the performance by the FBI under Obama, for having obtained, on 19 October 2016 (even prior to the U.S. Presidential election), from that Court, under false pretenses, an authorization for the FBI to commence investigating Donald Trump’s Presidential campaign, as being possibly in collusion with Russia’s Government. The Court’s ruling said:

In order to appreciate the seriousness of that misconduct and its implications, it is useful to understand certain procedural and substantive requirements that apply to the government’s conduct of electronic surveillance for foreign intelligence purposes. Title I of the Foreign Intelligence Surveillance Act (FISA ), codified as amended at 50 U.S.C. 1801-1813, governs such electronic surveillance. It requires the government to apply for and receive an order from the FISC approving a proposed electronic surveillance. When deciding whether to grant such an application, a FISC judge must determine among other things, whether it provides probable cause to believe that the proposed surveillance target is a “foreign power” or an agent a foreign power. …

The government has a heightened duty of candor to the FISC in ex parte proceedings, that is, ones in which the government does not face an adverse party, such as proceedings on electronic surveillance applications. The FISC expects the government to comply with its heightened duty of candor in ex parte proceedings at all times. Candor is fundamental to this Court’s effective operation. …

On December 9, 2019, the government filed, with the FISC, public and classified versions of the OIG Report. … It documents troubling instances in which FBI personnel provided information to NSD [National Security Division of the Department of Justice] which was unsupported or contradicted by information in their possession. It also describes several instances in which FBI personnel withheld from NSD information in their possession which was detrimental to their case for believing that Mr. [Carter] Page was acting as an agent of a foreign power. …

On December 18th, Martha McCallum, of Fox News, interviewed U.S. Attorney General Bill Barr, and asked him (at 7:00 in the video) how high up in the FBI the blame for this (possible treason) goes:

MACCALLUM: Were you surprised that he [Obama’s FBI Director James Comey] seemed to give himself such a distance from the entire operation?

“JAMES COMEY: As the director sitting on top of an organization of 38,000 people you can’t run an investigation that’s seven layers below you. You have to leave it to the career professionals to do.”

MACCALLUM: Do you believe that?

BARR: No, I think that the — one of the problems with what happened was precisely that they pulled the investigation up to the executive floors, and it was run and bird dogged by a very small group of very high level officials. And the idea that this was seven layers below him is simply not true.

The current (Trump) A.G. there called the former (Obama) FBI Director a liar on that.

If Comey gets heat for this possibly lie-based FBI investigation of the U.S. Presidential nominee from the opposite Party of the sitting U.S. President (Comey’s own boss, Obama), then protecting himself could become Comey’s top motivation; and, in that condition, protecting his former boss might become only a secondary concern for him. 

Moreover, as was first publicly reported by Nick Falco in a tweet on 5 June 2018 (which tweet was removed by Twitter but fortunately not before someone had copied it to a web archive), the FBI had been investigating the Trump campaign starting no later than 7 October 2015. An outside private contractor, Stefan Halper, was hired in Britain for this, perhaps in order to get around laws prohibiting the U.S. Government from doing it. (This was ‘foreign intelligence’ work, after all. But was it really? That’s now being investigated.) The Office of Net Assessment (ONA) “through the Pentagon’s Washington Headquarters Services, awarded him contracts from 2012 to 2016 to write four studies encompassing relations among the U.S., Russia, China and India”. Though Halper actually did no such studies for the Pentagon, he instead functioned as a paid FBI informant (and it’s not yet clear whether that money came from the Pentagon, which spends trillions of dollars that are off-the-books and untraceable), and at some point Trump’s campaign became a target of Halper’s investigation. This investigation was nominally to examine “The Russia-China Relationship: The impact on US Security interests.” Allegedly, George Papadopoulos said that “Halper insinuated to him that Russia was helping the Trump campaign”, and Papadopoulos was shocked at Halper’s saying this. Probably because so much money at the Pentagon is untraceable, some of the crucial documentation on this investigation might never be found. For example, the Defense Department’s Inspector General’s 2 July 2019 report to the U.S. Senate said “ONA personnel could not provide us any evidence that Professor Halper visited any of these locations, established an advisory group, or met with any of the specific people listed in the statement of work.” It seems that the Pentagon-contracted work was a cover-story, like pizza parlors have been for some Mafia operations. But, anyway, this is how America’s ‘democracy’ actually functions. And, of course, America’s Deep State works not only through governmental agencies but also through underworld organizations. That’s just reality, not at all speculative. It’s been this way for decades, at least since the time of Truman’s Presidency (as is documented at that link).

Furthermore, inasmuch as this operation certainly involved Obama’s CIA Director John Brennan and others, and not only top officials at the FBI, there is no chance that Comey would have been the only high official who was involved in it. And if Comey was  involved, then he would have been acting in his own interest, and not only in his boss’s — and here’s why: Comey would be expected to have been highly motivated to oppose Mr. Trump, because Trump publicly questioned whether NATO (the main international selling-arm for America’s ‘defense’-contractors) should continue to exist, and also because Comey’s entire career had been in the service of America’s Military-Industrial Complex, which is the reason why Comey’s main lifetime income has been the tens of millions of dollars he has received via the revolving door between his serving the federal Government and his serving firms such as Lockheed Martin. For these people, restoring, and intensifying, and keeping up, the Cold War, is a very profitable business. It’s called by some “the Military-Industrial Complex,” and by others “the Deep State,” but by any name it is simply agents of the billionaires who own and control U.S.-based international corporations, such as General Dynamics and Chevron. As a governmental official, making decisions that are in the long-term interests of those investors is the likeliest way to become wealthy.

Consequently, Comey would have been benefitting himself, and other high officials of the Obama Administration, by sabotaging Trump’s campaign, and by weakening Trump’s Presidency in the event that he would become elected. Plus, of course, Comey would have been benefitting Obama himself. Not only was Trump constantly condemning Obama, but Obama had appointed to lead the Democratic National Committee during the 2016 Presidential primaries, Debbie Wasserman Schultz, who as early as 20 February 2007 had endorsed Hillary Clinton for President in the Democratic Party primaries, so that Shultz was one of the earliest supporters of Clinton against even Obama himself. In other words, Obama had appointed Shultz in order to increase the odds that Clinton — not Sanders — would become the nominee in 2016 to continue on and protect his own Presidential legacy. Furthermore, on 28 July 2016, Schultz became forced to resign from her leadership of the DNC after WikiLeaks released emails indicating that Schultz and other members of the DNC staff had exercised bias against Bernie Sanders and in favor of Hillary Clinton during the 2016 Democratic primaries — which favoritism had been the reason why Obama had appointed Shultz to that post to begin with. She was just doing her job for the person who had chosen her to lead the DNC. Likewise for Comey. In other words: Comey was Obama’s pick to protect Clinton, and to oppose Trump (who had attacked both Clinton and Obama).

Nowadays, Obama is telling the Party’s billionaires that Elizabeth Warren would be good for them, but not that Sanders would — he never liked Sanders. He wants Warren to get the voters who otherwise would go for Sanders, and he wants the Party’s billionaires to help her achieve this (be the Party’s allegedly ‘progressive’ option), so that Sanders won’t be able to become a ballot option in the general election to be held on 3 November 2020. He is telling them whom not to help win the Party’s nomination. In fact, on November 26th, Huffington Post headlined “Obama Said He Would Speak Up To Stop Bernie Sanders Nomination: Report” and indicated that though he won’t actually say this in public (but only to the Party’s billionaires), Obama is determined to do all he can to prevent Sanders from becoming the nominee. In 2016, his choice was Hillary Clinton; but, today, it’s anyone other than Sanders; and, so, in a sense, it remains what it was four years ago — anyone but Sanders.

Comey’s virtually exclusive concern, at the present stage, would be to protect himself, so that he won’t be imprisoned. This means that he might testify against Obama. At this stage, he’s free of any personal obligation to Obama — Comey is now on his own, up against Trump, who clearly is his enemy. Some type of back-room plea-bargain is therefore virtually inevitable — and not only with Comey, but with other top Obama-appointees, ultimately. Obama is thus clearly in the cross-hairs, from now on. Congressional Democrats have opted to gun against Trump (by impeaching him); and, so, Trump now will be gunning against Obama — and against the entire Democratic Party (unless Sanders becomes its nominee, in which case, Sanders will already have defeated that Democratic Party, and its adherents will then have to choose between him versus Trump; and, so, too, will independent voters). 

But, regardless of what happens, Obama now is in the cross-hairs. That’s not just political cross-hairs (such as an impeachment process); it is, above all, legal cross-hairs (an actual criminal investigation). Whereas Trump is up against a doomed effort by the Democratic Party to replace him by Vice President Mike Pence, Obama will be up against virtually inevitable criminal charges, by the incumbent Trump Administration. Obama played hardball against Trump, with “Russiagate,” and then with “Ukrainegate”; Trump will now play hardball against Obama, with whatever his Administration and the Republican Party manage to muster against Obama; and the stakes this time will be considerably bigger than just whether to replace Trump by Pence. 

Whatever the outcome will be, it will be historic, and unprecedented. (If Sanders becomes the nominee, it will be even more so; and, if he then wins on November 3rd, it will be a second American Revolution; but, this time, a peaceful one — if that’s even possible, in today’s hyper-partisan, deeply split, USA.)

There is no way that the outcome from this will be status-quo. Either it will be greatly increased further schism in the United States, or it will be a fundamental political realignment, more comparable to 1860 than to anything since. The U.S. already has a higher percentage of its people in prison than does any other nation on this planet. Americans who choose a ‘status-quo’ option will produce less stability, more violence, not more stability and a more peaceful nation in a less war-ravaged world. The 2020 election-outcome for the United States will be a turning-point; there is no way that it will produce reform. Americans who vote for reform will be only increasing the likelihood of hell-on-Earth. Reform is no longer an available option, given America’s realities. A far bigger leap than that will be required in order for this country to avoid falling into an utter abyss, which could be led by either Party, because both Parties have brought the nation to its present precipice, the dark and lightless chasm that it now faces, and which must now become leapt, in order to avoid a free-fall into oblivion. 

The problem in America isn’t either Obama or Trump; it’s neither merely the Democratic Party, nor merely the Republican Party; it is instead both; it is the Deep State. That’s the reality; and the process that got us here started on 26 July 1945 and secretly continued on the American side even after the Soviet Union ended and Russia promptly ended its side of the Cold War. The U.S. regime’s ceaseless thrust, since 26 July 1945, to rule the entire world, will climax either in a Third World War, or in a U.S. revolution to overthrow and remove the Deep State and end its dictatorship-grip over America. Both Parties have been controlled by that Deep State, and the final stage or climax of this grip is now drawing near. America thus has been having a string of the worst Presidents — and worst Congresses — in U.S. history.  This is today’s reality. Unfortunately, a lot of American voters think that this extremely destabilizing reality, this longstanding trend toward war, is okay, and ought to be continued, not ended now and replaced by a new direction for this country — the path toward world peace, which FDR had accurately envisioned but which was aborted on 26 July 1945. No matter how many Americans might vote for mere reform, they are wrong. Sometimes, only a minority are right. Being correct is not a majority or minority matter; it is a true or false matter. A misinformed public can willingly participate in its own — or even the world’s — destruction. That could happen. Democracy is a prerequisite to peace, but it can’t exist if the public are being systematically misinformed. Lies and democracy don’t mix together any more effectively than do oil and water.

NOTE

* The given official U.S. definition of “treason” (see top of page 3 there) is “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.” Any U.S. official has sworn to uphold and defend, never to subvert, the Constitution of the United States, and this is defining the U.S., itself, as being the continued functioning of the U.S. Constitution. Treason is thus the supremely illegal act under U.S. law, the act that violates any U.S. official’s oath of office. (When treason is perpetrated by someone who is not a U.S. official, it is still a severe crime, but less severe than it is for any U.S. official.) The phrase “levies war against them” means war against the functioning of the Constitution that is their supreme law. “Or” means alternatively, and “adheres to their enemies” means is a follower of any person or other entity that seeks to impose a different constitution. “Enemies” is not defined — it need not be a foreign opponent; it may be a domestic opponent of the U.S. Constitution. Thus, an American can be an enemy of the United States of America. In fact, the official definition explicitly refers ONLY  to an entity “owing allegiance to the United States.” (Obviously, that especially refers to any U.S. official.) This is how a “traitor” is understood, in U.S. law.  Obviously, the worst traitor would be one who committed the treasonous act(s) while a U.S. official.

Investigative historian Eric Zuesse is the author, most recently, of They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010

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Americas

Biden’s Dilemma: Caught Between Israel and Iran

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Official White House Photo by Adam Schultz

By all indication, the latest sabotage at Iran’s uranium enrichment facility in Natanz aimed at more than just disabling thousands of Iran’s centrifuges and thus cause another setback for Iran’s nuclear program, it was also meant as an indirect diplomatic sabotage vis-a-vis the on-going nuclear talks in Vienna; the latter had shown real signs of progress before the April 10th incident at the Natanz facility, blamed on Israel by the Iranian officials, who have vowed to get revenge — an attack on an Israeli cargo ship off the coast of Oman as well as an attack on an Israeli post in Iraq’s Kurdistan may indeed be the acts of Iranian retaliation.

But, from Iran’s vantage, the biggest response was the decision to upgrade the enrichment level from 20% to 60% percent, thus bringing Iran closer to the weapons grade enrichment, bound to raise the ire of Tel Aviv, which is intent on dispossessing Iran of nuclear weapons capability.  Iran’s Supreme Leader, Ayatollah Khamenei, has followed suit by stating that Iran will not be dragged into a “protracted negotiation” with the US and that US’ removal of sanctions needs to be the first step in a future US return to the 2015 nuclear deal, known as the Joint Comprehensive Plan of Action (JCPOA).  In turn, this raises the question of how will the Biden administration respond, and adjust to, the latest developments?

On the one hand, the Iranian setback in Natanz, widely interpreted inside Iran as a major “embarrassment,” as it is the second time in 9 months that Israel has successfully inflicted serious damage on the facility, weakens Iran’s hand at the table in Vienna, no matter how the Iran negotiators seek to spin the issue.  With Iran’s vulnerability to “nuclear sabotage” irrefutably established, Tehran’s ability to utilize its nuclear chips in the bargaining with US has been diminished, perhaps for the duration of the current year, thus leading some conservative politicians to urge the government to withdraw from the Vienna talks. 

On the other hand, it is by no means clear that the Biden administration favors Israel’s spoiler role, which might lead to an escalation of tensions in the region to the detriment of Biden’s determination to re-embrace the JCPOA as part and parcel of an Iran “re-thinking” policy at odds with his predecessor’s maximum pressure strategy.  Chances are that, much like the Obama administration, the Biden administration will need to defy Israel’s will on Iran and push ahead for a new understanding with Tehran at a time Israel’s hawkish Prime Minister, Benjamin Netanyahu and, to a lesser extent the Saudi rulers, are wary of Biden’s resurrection of Obama’s (perceived) conciliatory approach toward Iran.  The big question is if President Biden is willing to act independently of Israel’s hawkish recipe for Iran and make meaningful concessions, above all in the area of post-2015 sanctions on Iran, in order to achieve its key demand of bringing Iran in compliance with its JCPOA obligations?  Lest we forget, Obama’s defiance of Israel on the JCPOA caused a major rift benefiting the Republican Party opponents of the deal, such as Donald Trump, and so far there is little evidence that Biden is unmindful of that prior experience.  In turn, this may explain the timing of US Defense Secretary Austin’s Israel visit coinciding with the Natanz sabotage, which may not have been coincidental as Israel most likely had informed Washington of the coming attack on Natanz beforehand.  

Naturally, Tehran is irritated at Austin’s presence in Israel at that particular time and his expression of “ironclad support” for Israel instead of raising any criticism of nuclear terrorism against Iran, just as China and Russia have done.  In fact, none of the Western governments, as well as the EU, partaking in the Vienna talks, have bothered to condemn the attack on Natanz, thus adding salt to Iran’s injury.  Instead, the German foreign minister, Heiko Maas, dispensed with any criticism of Israel and confined himself to questioning Iran’s post-attack decision to increase the enrichment level, which he called “irresponsible.”  But, is it really responsible for the US and European powers to refrain from condemning an act of sabotage with respect to a facility that, under the terms of JCPOA, is recognized to be the hub of Iran’s nuclear fuel cycle? Germany, France, and England, as well as the European Union, ought to act in unison denouncing the acts of nuclear sabotage in Iran, irrespective of Israel’s prerogative.  Their failure to do so simply adds another layer of distrust between Iran and these powers, to the detriment of any prospect for tangible progress in the Vienna talks.

As for Biden’s foreign team, which has reported of its “serious proposal” on the table, it must recognize that unless there is some pressure applied on Israel to stop its spoiler role, US’s national interests maybe harmed and even sacrificed by a hawkish Middle East ally that behaves according to its own calculation of risks to its interests.  In a word, an Obamaian rift with Israel may indeed be both inescapable and inevitable for the Biden administration.

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Roads and Rails for the U.S.

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For those who expect the newly announced $2 trillion Biden infrastructure program to be a goodbye to potholes and hello to smooth-as-glass expressways, a disappointment is in store.  The largest expenditure by far ($400 billion) is on home/community care, impacting the elderly or disabled.  The $115 billion apportioned to roads and bridges is #4 on the list. 

The American Society of Civil Engineers (ASCE) keeps tabs on our infrastructure and their latest report (2020) gave it an overall grade of C-.  Although bridges worsened, this is a modest improvement on the previous report (2017) when the overall grade was D+.  If $115 billion in spending sounds adequate, one has to remember it costs $27 billion annually for upkeep.

Astounding it might be the backlog in spending for roads and bridges runs at $12 billion annually.  Go back 20 years and we have a quarter trillion shortfall.  Add all the other areas of infrastructure and the ASCE comes up with a $5 trillion total.  It is the gap between what we have been spending and what we need to.  Also one has to bear in mind that neglect worsens condition and increases repair costs. 

One notable example of maintenance is the Forth rail bridge in Scotland.  A crisscross of beams forming three superstructures linked together, it was a sensation when opened in 1890 and now is a UN World Heritage Site.  Spanning 1.5 miles, its upkeep requires a regular coat of paint.  And that it gets.  Rumor has it that when the unobtrusive painters reach the end of their task, it is time to start painting again the end where they began — a permanent job to be sure though new paints might have diminished such prospects.

Biden also proposes $80 billion for railways.  Anyone who has travelled or lived in Europe knows the stark contrast between railroads there and in the U.S.  European high-speed rail networks are growing from the established TGV in France to the new Spanish trains.  Run by RENFE, the national railway, Alta Velocidad Española (AVE) trains run at speeds up to 310 km/h (193 mph)  — a speed that amounts to a convenient overnight trip between Los Angeles and Chicago.

The hugely expensive new tracks needed can be considered a long-term investment in our children’s future.  But it will take courage to contest the well-heeled lobbies of the airplane manufacturers, the airlines and big oil.

If Spain can have high-speed rail and if China already has some 24,000 miles of such track, surely the US too can opt for a system that is convenient for its lack of airport hassle and the hour wasted each way in the journey to or from the city center.  Rail travel not only avoids both but is significantly less polluting.  

Particularly bad, airplane pollution high above (26 to 43 thousand feet) results in greater ozone formation in the troposphere.  In fact airplanes are the principal human cause of ozone formation.

Imagine a comfortable train with space to walk around, a dining car serving freshly cooked food, a lounge car and other conveniences, including a bed for overnight travel; all for a significantly less environmental cost.  When we begin to ask why we in the US do not have the public services taken for granted in other developed countries, perhaps then the politicians might take note.

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Congress and the Biden administration should end FBI immunity overseas

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Image source: U.S. Embassy in Uzbekistan

The FBI notably has an extended international presence running 63 offices in select countries overseas. The offices are called “legats” and are situated at the US Embassy in the host country. One of the major reasons for FBI’s international presence is fighting international terrorism.

The FBI legat personnel at the US embassies are fully accredited diplomats enjoying full diplomatic immunity but that poses several questions that are worth asking, such as: how is it possible for law enforcement to be diplomats and is that a good idea, legally speaking?

Police work should not enjoy diplomatic immunity because that opens the door to abuse. Does the FBI’s immunity overseas mean that the FBI attaches can do no wrong in the host country? How do we tackle potential rights infringements and instances of abuse of power by the FBI towards locals in the host country? The DOJ Inspector General and the State Department Inspector General would not accept complaints by foreigners directed at the FBI, so what recourse then could a local citizen have vis-a-vis the FBI legat if local courts are not an option and the Inspector Generals would not look into those cases?

This presents a real legal lacuna and a glitch in US diplomatic immunity that should not exist and should be addressed by Congress and the new Biden administration.

While FBI offices overseas conduct some far from controversial activities, such as training and educational exchanges with local law enforcement, which generally no one would object to, the real question as usual is about surveillance: who calls the shots and who assumes responsibility for potentially abusive surveillance of locals that may infringe upon their rights. It’s an issue that most people in countries with FBI presence around the world are not aware of. The FBI could be running “counter-terrorism” surveillance on you in your own country instead of the local police. And that’s not nothing.

When we hear “cooperation in the area of counter-terrorism”, as recent decades show, there is a great likelihood that the US government is abusing powers and rights, without batting an eyelash. That exposes local citizens around the world to unlawful surveillance without legal recourse. Most people are not even aware that the FBI holds local offices. Why would the FBI be operating instead of the local law enforcement on another country’s territory? That’s not a good look on the whole for the US government.

The legal lacuna is by design. This brings us to the nuts and bolts of the FBI legats’ diplomatic immunity.

Diplomatic immunity is governed by the Vienna Convention on Diplomatic Relations of 1961, under Chapter III on privileges and immunities. The US is also a state party to the Convention, along with most states around the world. While there could be some variations and disagreements on bilateral basis (including on weather for example one state could be hosted and represented through the embassy of another state in a third state), on the whole there is a universal consensus that the Vienna Convention sets the rules establishing diplomatic immunities and privileges.

Under the Vienna Convention, only top diplomats are given the highest degree of immunity from the law. This means they cannot be handcuffed, arrested, detained, or prosecuted by law enforcement officials of the country in which they’re stationed. Diplomatic immunities and privileges also include things like diplomatic “bags” (with very peculiar cases of what that could entail) and notably, protection and diplomatic immunity for the family of diplomats.

It is a universal consensus that not everyone who works at an Embassy has or should have diplomatic immunity.  Immunity is saved for diplomats whose role has to be protected from the local jurisdiction of the country for a reason. Not all embassy staff should enjoy diplomatic immunity. Granting law enforcement such as the FBI full legal immunity for their actions is bad news.

Only the top officials at an embassy are diplomats with an actual full immunity — and that’s for a reason.

It makes sense why a diplomat negotiating an agreement should not be subjected to local courts’ jurisdiction. But the same doesn’t go for a law enforcement official who acts as a law enforcement official by, for example, requesting unlawful surveillance on a local citizen, in his law enforcement capacity, while thinking of himself as a diplomat and being recognized as such by the law.

Law enforcement personnel are not diplomats. Dealing with extraterritorial jurisdiction cases or international cases is not the same thing as the need for diplomatic immunity. If that was the case, everyone at the export division at the Department if Commerce would have diplomatic immunity for protection from foreign courts, just in case. Some inherent risk in dealing with international cases does not merit diplomatic immunity – otherwise, this would lead to absurdities such as any government official of any country being granted diplomatic immunity for anything internationally related.

The bar for diplomatic immunity is very high and that’s by design based on an international consensus resting upon international law. Simply dealing with international cases does not make a policeman at a foreign embassy a diplomat. If that was the case every policeman investigating an international case would have to become a diplomat, just in case, for protection from the jurisdiction of the involved country in order to avoid legal push-back. That’s clearly unnecessary and legally illogical. Being a staff member at an embassy in a foreign country does not in and of itself necessitate diplomatic immunity, as many embassy staff do not enjoy diplomatic protection. It is neither legally justified nor necessary for the FBI abroad to enjoy diplomatic immunity; this could only open up the function to potential abuse. The FBI’s arbitrary surveillance on locals can have a very real potential for violating the rights of local people.  This is a difference in comparison to actual diplomats. Diplomats do not investigate or run surveillance on locals; they can’t threaten or abuse the rights of local citizens directly, the way that law enforcement can. Lack of legal recourse is a really bad look for the Biden administration and for the US government.

The rationale for diplomatic immunity is that it should not be permitted to arrest top diplomats, who by definition have to be good at representing their own country’s interests in relation to the host state, for being too good at their job once the host state is unhappy with a push back, for example. The Ambassador should not be exposed to or threatened by the risk of an arrest and trial for being in contradiction with the interests of the host state under some local law on treason, for example, because Ambassadors could be running against the interests of the host state, by definition. And that’s contained within the rules of diplomatic relations. It’s contained in the nature of diplomatic work that such contradictions may arise, as each side represents their own country’s interests. Diplomats should not be punished for doing their job. The same doesn’t apply to the FBI legats. Issuing surveillance on local citizens is not the same as representing the US in negotiations. The FBI legats’ functions don’t merit diplomatic immunity and their actions have to be open to challenge in the host country’s jurisdiction.

The FBI immunity legal lacunae is in some ways reminiscent of similar historic parallels, such as the George W. Bush executive order  that US military contractors in Iraq would enjoy full legal immunity from Iraqi courts’ jurisdiction, when they shouldn’t have. At the time, Iraq was a war-torn country without a functioning government, legal system or police forces. But the same principle of unreasonable legal immunity that runs counter international laws is seen even today, across European Union countries hosting legally immune FBI attaches.

Congress and the Biden administration should end FBI immunity overseas. It can be argued that for any local rights infringements, it is the local law enforcement cooperating with the US Embassy that should be held accountable – but that would ignore that the actual request for unlawful surveillance on locals could be coming from the FBI at the Embassy. The crime has to be tackled at the source of request. 

When I reached out to the US Embassy in Bulgaria they did not respond to a request to clarify the justification for the FBI diplomatic immunity in EU countries.

To prevent abuse, Congress and the Biden Administration should remove the diplomatic immunity of the FBI serving overseas.

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