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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.

Iveta Cherneva is an Amazon best-selling author, political commentator and human rights activist. Her latest book is “Trump, European security and Turkey”. Cherneva’s career includes Congress and the UN; she was a top finalist for UN Special Rapporteur on freedom of speech in 2020. Iveta’s opinions appear in Euronews, New York Times, Salon, The Guardian, Jurist, Washington Examiner, Modern Diplomacy, Emerging Europe, EurActiv, The Fletcher Forum, LSE, Daily Express. She comments on TV and radio for Euronews, DW, Voice of America and others.

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Weakness or calculation? How the pandemic undermined the US world leadership

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Anyone watching the numerous doomsday movies, happily churned out by Hollywood, will see American doctors saving the planet from space-borne viruses and the plague epidemic that turn people into zombies. However, the very first serious test in a decade has shown that the US healthcare system is actually inferior even to the Russian one, created during the Cold War years. And this despite the fact, that for the past 30 years, the Russian medical system has been suffering from “optimizations,” cuts and underfunding. Moreover, while the Kremlin, even for propaganda reasons, has managed to provide real assistance to a number of European countries, and has been the first to launch a vaccine on the market, Washington’s actions can be regarded as a sign of weakness, and a very dangerous one to its allies at that.

More than a year after the start of the global lockdown, we can already sum up the initial results, which look disappointing to Washington. The US healthcare system has collapsed under the pressure, thus laying bare the country’s inability to bring the outbreak of a less-than-deadly disease under control. As for Russia, despite its lack of America’s vast resources, it still managed to win the vaccine race and become the first to come up with a viable antidote.

More importantly, Moscow has also come out on top in the information “war” with the West, with its Sputnik V vaccine proving to have far fewer side effects than its Pfizer and Moderna counterparts. Therefore, the US and British lobbying of their own vaccines, and their attempts to close the European market for the Russian vaccine look unethical, to say the least, all the more so amid numerous European media reports about people having  died from side effects after being inoculated with Western vaccines. At the same time, there are simply no reports about similar complications caused by the Russian vaccine, even though the European Commission and Brussels have been keeping a close eye on the effects of its use in European countries, including Serbia and Hungary, which have already taken the first deliveries of the Sputnik V vaccine.

What is the reason for the US demonstrating its weakness? How come that in the midst of the epidemic Washington was unable to find the resources to demonstrate its readiness to lend a helping hand to its European allies? Unfortunately, one of the reasons was that the Americans simply freaked out. The truth is, the US healthcare system is rather decentralized and unorganized. People with good health insurance have little to worry about. However, in a situation of a pandemic, the US medical facilities are pretty hard to manage, so one has to do it manually. Compounded by the general atmosphere of panic and the fact that the poorest strata of society, who have no health insurance and constitute the main risk zone (obesity due to malnutrition, advanced chronic diseases and other COVID-inducing conditions), the system simply collapsed. Therefore, it is not surprising that the Trump administration tried to keep maximum resources at home. Moreover, the businessman-turned-president, who had openly spoken about “exporting security,” never missed a chance to make it clear to his allies that US assistance is never free. As a result, he was replaced by Biden, a Democrat who advocates maximum support for all democratic forces. However, Democrats usually provide moral or military support, but they have proved equally unprepared to line up any serious assistance to the countries hit the hardest by the pandemic.

Moreover, it was actually at the suggestion of the United States and the UK that the COVAX system, a global initiative aimed at providing equitable (but not free) access to COVID-19 vaccines for countries in need, stalled. It turned out (who might have guessed?) that both the US-developed Moderna and the British AstraZeneca vaccines are primarily needed by their own electorates, and only then by countries that need them, but are unable to produce their own vaccine. Meanwhile, India with a population of over 1 billion, managed to fulfill its obligations, and Russia is ready to launch the production of vaccines in Europe. However, bending under Washington’s pressure, the European Union has banned the import of Russian, Indian and Chinese vaccines, without bothering to explain the reasons for this ban.

A country, claiming world domination cannot lead in everything, of course.  Therefore, it is not surprising that the healthcare systems of many European countries, like Sweden and Switzerland, are way better that what they now have in the United States. That being said, the world leader still bears full responsibility for its allies and cannot leave them to their own devices, not only in the event of a military conflict, but also in the midst of a pandemic. However, this is exactly what it did…

From our partner International Affairs

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The legacy of 2020, and 2021 in the prospects of the United States and China

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usa-china
image source: cnn.com

2020 was a crucial year because of Covid-19, which disrupted the evolution of the world order in the direction of differentiation and transformation. This is the most severe crisis the human world has faced since the Second World War.

As of 10 May 2021, According to the Hopkins University Global New Crown Epidemic Statistics Report, as of May 10, 2021 there have been 158,993,826 confirmed cases worldwide and 3,305,018 deaths.

The pandemic is like a fatal global social test. On the basis of a world order that has already undergoing a crisis, it has not only caused a pause and thus a deceleration of economic development, but it has also stepped up social division and the transfer of power from the political to the technical sphere.

Although the most experienced analysts and leading research institutions have published various reports, currently none of them can accurately predict in detail the huge impact of the pandemic on the history of the 21st century.

The pandemic, however, will bring about major changes in four areas.

Firstly, it will accelerate the general trend of global economic recession and differentiation. This is due to the currency over-issue policies adopted by several countries and to intensified domestic social polarisation. Since 2018 the global economic and financial crisis has not yet been solved. On the contrary, the crisis has only been concealed by the short-term response of monetary policy.

Secondly, the pandemic will speed up internal changes and the reorganisation of the international political and economic order precisely due to internal social differentiation. Owing to the turbulent influence of domestic and international policies, economic and political risks in fragile regions of the world will intensify or have knock-on effects.

Thirdly, the pandemic will strengthen the digital society and competition between countries in building new technologies will become more intense. The most significant impact of digital society is the silent arrival of a transparent society that exists but has no human contacts.

Fourthly, the pandemic promotes the rise of vaccine nationalism and accelerates the revival of the community value of East Asian countries, which has epochal significance from the perspective of the history of world civilisation.

The most influential political and economic event in 2020 was the US elections and the related change of Administration. The US elections represented the sharpest but also the most frustrating change in US history. Although Donald Trump lost the election, 74,216,154 citizens voted for the outgoing President.

For the United States, the change in direction cannot be seen as the advent of a resolute and determined policy along one single line, as the basic reality of the highly divided American society was not changed, but indeed strengthened due to the general election. The huge impact promoted the spread of political violence and protests in the United States.

Source: The US Crisis Monitor, Bridging Divides Initiative, Princeton School of Public and International Affairs’, Liechtenstein Institute on Self-Determination.

First of all, Donald Trump lost the election, but the spectre of Trumpism has remained in the United States and even in Europe, which is generally not conducive to advancing the strategy of developing relations with China.

Secondly, the “antagonism” of the US strategy towards China has not changed radically. Trump hadopened a political-economic dispute with China. Itisparticularlynoteworthythat the younger generation of the Republican leadership isgraduallybecominghostile and negative towards China, and exertsgreatinfluence in Congress.Thisdoesnotfavours world peace.

Thirdly, if this attitude is not contained, it will lead to negative long-term impacts between high-tech decoupling and ideological competition. Finally, China’s policy towards the United States has been perfected and refined: although the government is still adopting a wait-and-see attitude, the voice of seeking cooperation and being rational and pragmatic is still the mainstream in China.

Besides the issue that China will reduce its dependence on the world and increase world’s dependence on China itself, China will reduce its dependence on traditional growth models and increase its care for social, green and environmental sustainability.

The year 2021 is proving that the focus of the analysis of global political and economic trends will still be competition between China and the United States. President Biden’s Administration still regards China as its main strategic competitor, but the methods of addressing the issue are quite different from those of Trump’s Administration. The main difference lies in the fact that President Biden focuses on solving domestic problems and does not exclude the most important issues with China.

President Biden’s Administration has adapted its strategy for China as the influence of major lobbies and interest groups – such as the US finance and military industry – on policy is constant compared to the previous Administration. Nevertheless, the Chinese factor in the chain of global interests keeps higher levels.

Indeed, voices from both parties in the US Congress calling for curbing China’s rise are also increasing.

In short, in terms of China’s policy direction, President Biden’s Administration is expected to oppose a trade war because it harms the core interests of the US business community. However, there are likely to be problems for Taiwan, Xianggang (Hong Kong), Xinjiang Weiwu’er (Uyghur), South China Sea, Xizang (Tibet), as well as other issues.

The possibility of renewed trade negotiations between China and the United States is expected to increase significantly in the future and the US strategy of constructive competition will be reformed.

Regardless of changes in Sino-US relations, China will certainly promote greater bilateral and multilateral investment cooperation, while seeking new development and shaping new models of cooperation.

The key areas which are currently the most important and noteworthy are, firstly, China’s joining the Regional Comprehensive Economic Partnership (RCEP) and seeking to adhere to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which shows that China’s top leadership has decided to continue the reform strategy of internal and external promotion.

The RCEP is a free trade agreement in the Asia-Pacific region between the ten States of the Association of South-East Asian Nations (Brunei, Cambodia, Philippines, Indonesia, Laos, Malaysia, Myanmar, Singapore, Thailand and Vietnam) and five of their free trade partners: Australia, China, the Republic of Korea (South Korea), Japan and New Zealand. These Member States account for approximately 30% of world’s population and GDP, thus making it the largest trading bloc.

The CPTPP, instead, is a draft regional investment and regulatory treaty in which negotiations, until 2014, twelve Pacific and Asian countries participated: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the USA and Vietnam.

Indeed, between the RCEP and the CPTPP, there is not only the interconnection of the industrial chain and commonality -and more reasons for unity than differences – but also the influence of great powers’ strategic factors.

The main difference between the two is that the CPTPP has higher economic quality requirements, while the RECP is more inclusive. Secondly, the China-EU trade and investment agreement is likely to be signed, which has clear short-term interests for Europe and long-term strategic interests for China. China, however, still needs to take a cautious attitude towards European policy and its legal systems based on double standards. Thirdly, China and Russia are strengthening comprehensive strategic cooperation and there will be new opportunities for their cooperation in the energy and military sectors.

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Why Congress should be rough on Chris Miller at his testimony on Wednesday

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FBI director Chris Wray’s weak congressional testimony in March left most of the Capitol attack questions unanswered and most of us scratching our heads: if the chiefs of the intelligence agencies don’t know, then who does?

As I argued back in March, before Senate Wray picked the low hanging fruit questions — such as confirming that the Trump mob that stormed the Capitol was indeed Trump’s mob and not some other people — while conviniently glazing over the real questions.

This is why the congressional testimony by former acting Secretary of Defense, Chris Miller, this Wednesday matters. The national guard mystery is still the elephant in the room that’s still sitting in the corner in loud, deafening silence.

The House Oversight and Reform Committee has been looking for answers from federal intelligence agencies on Trump’s role in the Capitol insurrection since day one. They have knocked on pretty much any door they could think of, requesting information from sixteen offices in total. That brings us to Wednesday when the Committee will hear from Chris Miller, as well as Jeff Rosen, former acting Attorney General, and Robert Contee III, District of Columbia Police Chief, in a hearing titled “The Capitol Insurrection: Unexplained Delays and Unanswered Questions.”

Back in March, when Senate grilled Wray, the FBI director could not answer why the national guard was not sent in to quell the attack. Wray vaguely put the decision on local policy makers, conveniently circumventing federal responsibility.

Then months later, defense officials actually stated that the national guard was delayed for reasons of “optics” and worries over how it would look if Trump’s mob was pushed out forcefully, as they should’ve been. Miller dragged his feet for hours before giving the green light, as he wanted to imagine what exactly the national guard’s intervention will look like. The actual deployment took only 20 minutes, logistically speaking.

Miller has already spoken about Trump’s “cause and effect” words responsible for inciting the Capitol attacks. And some commentators like Sarah Burris at Raw Story already predict that Miller is about to throw Trump under the bus on Wednesday.

But that’s not enough. Where was Miller back then? The delay was his decision and no one else’s. The Congressmen and Congresswomen of the House Oversight and Reform Committee chaired by Congresswoman Carolyn Maloney, should not go easy on Miller only because now, after the fact, he is willing to speak up against Trump. Now it’s easy. Now it doesn’t count.

Trump removed Secretary of Defense Esper over his objection to sending the national guard on the Black Lives Matter movement that sparked up exactly one year ago. That’s why Trump replaced Esper with Miller. Miller could have also said no to Trump but he played along. That’s why Miller doesn’t get to play hero now. There are no heroes in the Trump Administration’s aftermath. Some “cause and effect” talk and hypocritical outrage after the fact don’t count. Now doesn’t count. The House Oversight and Reform Committee shouldn’t buy this. The time for cheap spins and late awakened conscience is up. Now is the time for real answers. Miller and Rosen should get a rough ride on Wednesday. Anything else would not be acceptable.

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