Now, this is simply uncalled for. The man is doing his job.
India Attacks Indian-American U.S. Attorney - India Real Time - WSJ
India Attacks Indian-American U.S. Attorney
Reuters
Preet Bharara in New York, Dec. 5.
The Indian media usually seizes any opportunity to bask in the reflected glory of Indian-origin success stories.
Whether it’s
Miss America, a
Spelling Bee Champion, or the likely new Surgeon General, whenever a person remotely connected to India does well overseas, the country’s media is the first to single out the achiever’s Indian roots.
(Full disclosure: We at India Real Time, too, like a ‘person of Indian-origin done good story.’)
In the case of Preet Bharara, the Indian-American U.S. Attorney for the Southern District of New York, though, the Indian media — as well as government officials — seem less keen to laud his success as the head of investigation and litigation of all criminal and civil cases brought on behalf of the U.S. in the New York area.
Mr. Bharara, who was handpicked for his position by Barack Obama, is the prosecutor in the case of the
U.S. versus Devyani Khobragade the Indian diplomat arrested in New York last week over alleged visa fraud related to the employment of her domestic help, Sangeeta Richard.
Ms. Khobragade’s arrest has sparked anger in India and prompted an ongoing diplomatic row with the U.S. Ms. Khobragade has denied wrongdoing through her lawyer.
In
a statement on Wednesday, Mr. Bharara questioned why the Indian government wasn’t more concerned about the alleged ill-treatment of the domestic servant, and only focused on the heavy-handed treatment Ms. Khobragade received.
He also sought to explain why Ms. Richard’s family had been brought to the U.S. from India. “Speculation about why the family was brought here has been rampant and incorrect,” he said in the statement.
Some Indian media had reported that the family of the domestic servant traveled to the U.S. in order
to obtain a Green Card.
“Some focus should perhaps be put on why it was necessary to evacuate the family and what actions were taken in India vis-à-vis them. This Office and the Justice Department are compelled to make sure that victims, witnesses and their families are safe and secure while cases are pending,” Mr. Bharara said.
In response on Thursday, Syed Akbaruddin, the spokesman for India’s Ministry of Foreign Affairs, said that the statement by the U.S. Attorney was “one more attempt at a post facto rationalization for action that should never have taken place in the first place.” The only victim in the case was Ms. Khobragade, the spokesman added.
Salman Khurshid, India’s Minister of External Affairs, told news channel NDTV that there was “no need to take Preet Bharara or his comments seriously.”
English-language weekly,
India Today, went a step further. It asked whether Mr. Bharara, who took up his post in August 2009, was targeting Indians.
“Before spearheading proceedings against Devyani, Bharara had hit the headlines for prosecuting ex-McKinsey MD Rajat Gupta for insider trading charges,” the magazine said on Wednesday.
Mr. Bharaha was born in 1968 in the town of Firozpur in the northern Indian state of Punjab and,
according to a profile of him in the New Yorker, moved with his family to New Jersey when he was a toddler. He is the son of a Sikh father and Hindu mother who moved from Pakistan to India after the partition.
The New Yorker reported that when Mr. Bharara was interviewed at the White House for the U.S. Attorney’s job, he was asked if he had been born in India. Yes, Bharara replied. Was he a citizen of the United States, the interviewer then asked. “Damn,” Mr. Bharara said. “You’ve got to be a
citizen for this job?”
During his time in the role, a position once held by Rudy Giuliani who went on to become mayor of New York, Mr. Bharara has convicted dozens of insider trading defendants. They include Sri Lankan-origin
Raj Rajaratnam, who was sentenced to 11 years, and as noted by India Today,
Rajat Gupta, a native of Kolkata, who gave Mr. Rajaratnam a tip-off when he the director at Goldman Sachs Group Inc.
But Mr. Bharara doesn’t just go after people of South Asian origin. His office secured a guilty plea from Peter Madoff for his role in his brother Bernard’s Ponzi scheme,
according to the Attorney General’s website. He has also taken on cases involving cybercrime, personal identity theft, narcotics trafficking and terrorism.
Before taking up his current role, Mr. Bharaha was chief counsel and staff director of the U.S. Senate Judiciary Committee’s Subcommittee on Administrative Oversight. He has also served as an assistant U.S. Attorney, in the Southern District.
He is a graduate of Harvard College and Columbia Law School.
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How Diplomatic Immunity Works - India Real Time - WSJ
How Diplomatic Immunity Works
Agence France-Presse/Getty Images
A police car stood in front of India’s United Nations permanent mission in New York on Dec. 18.
The
arrest and alleged ill-treatment of an Indian diplomat accused of committing visa fraud and underpaying her domestic maid in New York has put the complex system of diplomatic immunity under the spotlight.
Devyani Khobragade, 39, an Indian consular officer, was handcuffed outside her daughter’s school in New York and put in jail briefly before posting bail last Thursday. She was strip searched and had to share a cell with drug addicts during her brief arrest.
U.S. prosecutors charged her with committing a visa violation and making false claims about the amount of money she paid an Indian national who worked for her as a domestic helper in order to obtain a visa for her to enter the country. If convicted, Ms. Khobragade faces a maximum sentence of 10 years for visa fraud and five years for making false statements.
She will challenge the prosecution on grounds of diplomatic immunity, said her lawyer Daniel N. Arshack. “She is protected from prosecution by virtue of her diplomatic status,” Mr. Arshack said in an email.
The U.S. State Department prosecutors said Ms. Khobragade does not have full diplomatic immunity. It said that, as a consular official, rather than a full diplomatic agent, under the United Nations’ Vienna Convention on consular relations, she is immune from arrest only for crimes committed in connection with her work.
According to the State Department’s rulebook for law enforcement and judicial authorities, consular officers, such as Ms. Khobragade
do not have the same level of immunity as those who work at diplomatic missions.
Diplomats and consular officials are shielded under two different United Nations treaties – the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963.
The diplomatic agents, including ambassadors, secretaries, office managers and some security personnel enjoy “complete personal inviolability,” which means they cannot be handcuffed (except in exceptional circumstances), arrested or detained or have their property can be searched, according to the State Department’s guidance document for law enforcement and judicial authorities. Family members forming part of the household of diplomatic agents enjoy precisely the same privileges and immunities.
Diplomatic agents are also immune from criminal and civil law suits barring a few exceptions and cannot be prosecuted, even for a serious offence, unless the immunity is waived by the sending country.
By contrast, consular officials – those who issue travel documents, deal with problems of their own nationals in the country – are protected in this way only while going about their official functions.
In Ms. Khobragade’s case, “she fell under that specific kind of immunity, and would be liable to arrest pending trial pursuant a felony arrest warrant,” State Department spokeswoman Marie Harf said.
In order to shield Ms. Khobragade from prosecution, India Wednesday
reassigned her to the country’s permanent mission at the United Nations to ensure she gets retroactive diplomatic immunity that would entitle her with broader legal safeguards, including immunity for acts before or after her appointment, than she presently enjoys.
“Criminal immunity precludes the exercise of jurisdiction by the courts over an individual whether the incident occurred prior to or during the period in which such immunity exists,” the State Department rulebook says.
Still, the State Department has the authority to reject Ms. Khobragade’s move to the U.N.
It remained unclear Thursday whether she would be granted retroactive diplomatic immunity.
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The U.S. Asks: What About the Maid? - India Real Time - WSJ
The U.S. Asks: What About the Maid?
Reuters
A security official stood guard outside the U.S. embassy in New Delhi, Dec. 18.
As India continues to bristle
over allegations of mistreatment of one of its diplomats in the U.S., American authorities prosecuting the case are asking a different question: Why is no one bothered about the maid who brought the case and alleged she was underpaid and overworked?
Devyani Khobragade is accused of submitting false documents to obtain a U.S. visa for her domestic help, Sangeeta Richard, before starting her job as a deputy consul general at the Indian Embassy in New York in November 2012. Ms. Khobragade was arrested last week after her help
alleged she was paid below the minimum wage required under visa rules.
In a statement Wednesday, Preet Bharara, the U.S. Attorney for the Southern District of New York prosecuting the case, asked, “why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?”
Jon Alder, the president of the Federal Law Enforcement Officers Association in the U.S., also pondered a similar question in light of India’s uproar over the investigation. “Perhaps Indian officials should direct their outrage towards Ms. Khobragade for her alleged visa fraud and the alleged servant wages she paid her housekeeper,” he said Wednesday.
Tensions between India and the U.S. escalated this week after news reports said Ms. Khobragade had been strip-searched following her arrest. India, in retaliation,
dismantled security barriers on streets around the U.S. Embassy in New Delhi and revoked some privileges given to American consular officials. The Obama administration sought to tamp down anger in India. Secretary of State
John Kerry, in a statement on Wednesday,
expressed regret over the episode.
India has been seeking to address the issue of the pay differential between what it pays Indian domestic servants it employs abroad and wages earned by their U.S. counterparts, according to Krishna V. Rajan, a former Indian ambassador and former president of the Association of Indian Diplomats.
In an interview with The Wall Street Journal, External Affairs Minister Salman Khurshid, said: “We are looking at ways and means to insure that there is no ambiguity left” over the status of these Indian workers abroad. “We have to look at some shift in status of these people, the issue of immunity and the issue of what is perceived to be U.S law on salaries” to prevent this happening again, he added.
It is not clear what progress has been made but the sticking point seems to be that if visa rules require the wages of the domestic helpers to be at par with economies such as the U.S., they would outstrip salaries of most of the Indian diplomats.
“An Indian diplomat is not the highest paid in the world,” said Mr. Rajan who has served as an ambassador to Nepal, the U.K., Algeria and Zambia and was a senior diplomatic officer in Washington. “We have a different lifestyle, an austerity which appeals to us,” Mr. Rajan said. “We don’t necessarily spend as lavishly as other cultures might. Though things are changing.”
The Ministry of External Affairs does not publish the remuneration rates of its officials abroad. Domestic workers attached to diplomats travel under official passports and are only partly paid by the Indian government. The remainder comes from the diplomat’s own pocket, according to an official at India’s Ministry of External Affairs.
In India,
there is no set wage for a domestic worker who can expect to receive between 3,000 and 20,000 rupees a month in New Delhi depending on the level of work required, and according to the neighborhood where the employer resides. In the U.S., in order to obtain a visa for a domestic worker, the employer must commit contractually to paying the minimum wage, not including other benefits such as board and accommodation.
The external affairs official said that there was a “systemic problem” with the pay structure for domestic servants of India’s diplomatic staff abroad. The difficult of solving it though comes down to the question: “How can you be paying the maid more than the diplomat?” the official said.
In interviews with the Indian media, Ms. Khobragade’s father said his daughter was paid about $6,500 a month, and couldn’t afford to pay her helper $4,500 a month, as required under U.S. visa laws.
“We have to change the whole system…this is not the first time this has been going on. Even the U.S. Embassy knows that it [the visa contract] was just a formality,” the ministry official added.
The U.S. Attorney, in his statement, said that the Indian government was aware of the legal issue and “that its diplomats and consular officers were at risk of violating the law.”
“The question then may be asked: Is it for U.S. prosecutors to look the other way, ignore the law and the civil rights of victims (again, here an Indian national), or is it the responsibility of the diplomats and consular officers and their government to make sure the law is observed?” Mr. Bharara asked in his statement.
According to the ministry official, the U.S. government is ignoring benefits afforded to domestic workers in diplomatic settings.
If everything including food, lodging, a flight home for holidays every two years, and medical care is taken into account, “whatever they get is pocket money, which they are saving,” the official added.
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The Full Allegations Against Indian Diplomat Devyani Khobragade - India Real Time - WSJ
The Full Allegations Against Indian Diplomat Devyani Khobragade
Agence France-Presse/Getty Images
The U.S. Embassy in New Delhi on Dec. 17.
U.S. authorities say Devyani Khobragade, the Indian diplomat arrested and charged with visa fraud in the U.S., submitted an employment contract to the State Department that she knew contained “materially false and fraudulent statements,” when she applied for a visa for another individual.
U.S. Department of State Bureau of Diplomatic Security Special Agent Mark. J. Smith who led the investigation, alleges Ms. Khobragade caused another individual to make statements that she knew to be false to an employee at the U.S. Embassy in New Delhi, in support of the visa application.
Ms. Khobragade is on bail. Repeated attempts to reach her for comment were unsuccessful.
Her lawyer, Daniel Arshack, said in an email that his client was “protected from prosecution by virtue of her diplomatic status.”
“This entire prosecution represents a significant error in judgment and an embarrassing failure of US international protocol,” Mr. Arshack said. “We hope that diplomats with authority at the highest levels of the Indian and U.S. governments will confer and conclude that it is simply not in the mutual interests of our countries to continue with this ill-advised prosecution.”
The State Department investigator’s statement says that Ms. Khobragade “enjoys limited diplomatic immunity with respect to only those acts undertaken in her official capacity.”
Under international law, consular officers such as Ms. Khobragde, who is deputy consul general for India in New York, have limited immunity and can be arrested in the case of “grave” crimes.
A
guide for U.S. police on treatment of consular officers and diplomats published by the State Department, notes that the privileges of “personal inviolability” accorded to consular officers is “quite limited.”
Mr. Smith’s statement quotes from the U.S. Department of State Bureau of Consular Affairs website, which says diplomats
may obtain visas for their personal employees, domestic workers and servants if they meet certain requirements.
The prospective employees must be interviewed, and have proof that they will “receive a fair wage, sufficient to financially support” themselves and be paid a wage “comparable to that being offered in the area of employment in the U.S.”
Among other stipulations on hours of work, holiday and sick leave, the regulations also make requirements for the minimum wage to be paid to the domestic worker.
“The rate must be the greater of the minimum wage under U.S. Federal and state law or the prevailing wage for all working hours,” the rules say. “The contract must state that wages will be paid to the domestic employee either weekly or biweekly.”
No deductions are allowed for lodging, medical care, medical insurance, or travel. Deductions taken for meals are also no longer allowed.
The investigating officer’s affidavit goes on to say that during a meeting at Ms. Khobragade’s house in Delhi with the prospective domestic worker, Ms. Khobragade agreed to pay 30,000 rupees a month for babysitting and additional household work in New York.
According to the domestic help and her partner, named in the statement as Witness 1 and Witness 2, at a subsequent meeting, Ms. Khobragade agreed to pay the domestic help a starting salary of 25,000 rupees and overtime of 5,000 rupees.
The investigating officer said that at exchange rates at the time, the salary equated to a rate of $3.31 an hour or $573.07 a month.
The visa application form, submitted by Ms. Khobragade, according to the investigator, stated that she would pay the domestic worker $4,500 dollars a month.
The investigating officer went on to record that Ms. Khobragade instructed the domestic worker to tell U.S. Embassy officials that she was being paid $9.50 an hour, and told her not to mention the 30,000 rupee salary.
The statement adds that the diplomat then asked the employee to sign a second employment contract, which stated that she would be paid no more than 30,000 rupees a month, including overtime. The contract did not say anything about working hours, sick pay, time off, or holidays, the investigating officer said, adding that it omitted to state that the employer agreed to abide by federal, state and local laws in the U.S.
Mr. Smith alleges that Ms. Khobragade paid her domestic help less than $3.31 an hour during her employment between Nov. 2012 and June 2013.
Read the
full State Department document.
