Diplomatic Pat-Downs

by Peter Spiro

The government of India is protesting TSA’s “humiliating” pat-down of its ambassadress to the United States.

On Dec 4, [Ambassador Meera] Shankar was subjected to a rigorous public “pat down” at the Jackson-Evers International Airport after a visit as a guest of the Mississippi State University.

According to The Jackson Clarion-Ledger, Shankar was singled out from a group of 30 passengers and pulled aside. Witnesses told the paper that she was chosen as she was wearing a sari.

Amid the uproar, the US Transportation Security Administration (TSA) asserted that diplomats are not exempt from the searches. Shankar “was screened in accordance with TSA’s security policies and procedures”, spokesman Nicholas Kimball said in Washington. A number of factors could prompt a pat-down search, including bulky clothing, but he said the agency did not generally discuss specific cases.

Can we be surprised that this happened in Mississippi?  The state’s lieutenant governor was quick to condemn the action: “Although I understand we need proper security measures to protect the passengers in US airports, I regret the outrageous way Indian Ambassador Shankar was treated by the TSA while visiting Jackson.”  Got to worry about foreign investment!

The question for diplomatic immunity experts is whether TSA pat-downs are consistent with the Vienna Convention on Diplomatic Relations, article 29 of which provides:

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Whether or not it constitutes a violation of the VCDR, TSA might as a policy matter send the word on down the line that diplomats should get kid- (not plastic-) glove treatment at airport checkpoints.

http://opiniojuris.org/2010/12/09/diplomatic-pat-downs-back-to-tsa/

7 Responses

  1. “Can we be surprised that this happened in Mississippi? ”

    Geography does not determine insensitivity.

    Best,
    Ben

  2. Ben, Fair enough.  But I doubt they’re accustomed to having accredited diplomats in the security lines at the Jackson-Evers airport (international as it may be), much less ones in alien garb. This is just slightly reminiscent of the problems African diplomats used to have in the US during Jim Crow.

  3. Fair enough on the echo.

    Here is an article on Jim Crow on West Broadway sent to me at one point – dating from 1860.

    “The New York Times Online Commentary, Opinionator, has been doing a series on the climate in this country on the eve of the Civil War using contemporary accounts, diaries, images, etc.  Here is the link to a revealing story about a black man who refused to exit a New York City street car in 1860 that did not have “the necessary sign in the window – ‘Colored People Allowed in This Car.’”   Adam Goodheart, Jim Crow on West Broadway (NYT Opinionator Nov. 16, 2010) http://opinionator.blogs.nytimes.com/2010/11/16/jim-crow-on-west-broadway/?ref=opinion&nl=opinion&emc=tya1
    Best,
    Ben

  4. This pat down violated both U.S. domestic law and international law.
     
    These pat downs violate the domestic right to be free from reasonable search in seizure in the 4th Amendment of the U.S. Constitution. According to my good friend who is a criminal defense lawyer, “for Fourth Amendment purposes, you can’t touch somebody like that unless you’re checking them into a jail or you’ve got reasonable suspicion that they’ve got a gun.” TSA agents are not checking passengers into jail and there is no “reasonable suspicion” for this evasive search to be warranted, these people are simply boarding a plane.
     
    Plus, these pat downs violate international laws article 26 of the Vienna Convention on Diplomatic Relations treaty. In violation of the treaty, during pat downs, diplomats are being “detained” and they are not being “treated with due respect” nor with “dignity.” In U.S. law treaties are the “supreme law of the land” under the U.S. Constitutions supremacy clause.  

    Thus, in this situation, not only did this pat down violate the diplomat’s rights under the 4th Amendment of the U.S. Constitution but they violated a treaty backed by the supremacy clause of the United States– I find this highly offensive and shameful.

  5. I don’t see it as a problem of Mississippi. It’s the government that should shoulder responsibility for this. However, there may be a trace of silver lining if this particular case helps to point out the imperfections of the whole system.

  6. Questions of profiling aside, Article 29 of the Vienna Convention is deliberately vague.  While such a pat down is, by US law, in no way an arrest, and really no more of a detention than having to go through security in the first place, the vagueness of an “attack on his person, freedom or dignity” makes the question more political than legal.  The Vienna Convention is simply a codification of pre-existing customary law, which was widely practised for reciprocity.  We give their diplomats all these rights, and they give our diplomats all the same rights.  The real question in this case is whether the Indian government makes a deal out of it, and since they have the US government is forced to either try and convince them otherwise, or to apologise and prevent this from happening in the future.  Really, though, they should never have patted her down in the first place, but without directives not to it was bound to happen sometime.

  7. Domestic Law: While the 4th amendment seems to be implicated as it states both illegal searches and seizures are prohibited, it is imperative to understand that in order for this amendment to truly apply, the person has to have subjectively manifested an interest in privacy, and that interest has to be one we are inclined to protect. Because the airport has a lower level of privacy interest (we trade our privacy interests for a higher level of security) pat downs are OK. Also, the law governs that at a checkpoint, as long as you have a legitimate purpose above merely policing and you have a method of randomization that does not allow for discretion, the checkpoint is legal.  In this case, the purposeful selection of a woman wearing a sari is clearly discrimination, however, TSA agents are not only allowed but trained to pick people out of crowds exhibiting nervous or otherwise troublesome behavior. They are also allowed to pat down people wearing excessive ‘garb’. In this case, the later might have been used as a pre-textual reason to racially discriminate. Coming from Arizona, this is not a new concept. (@Ben while geography cannot always determine insensitivity, it’s hard to say that when your government has been described as a “meth-lab” for democracy by Jon Stewart, and your sheriff has readily admitted to racial discrimination, yet retains office).

    International law: @Samuel, I agree Article 29 is sufficiently vague, but seems very subjective, especially using the word dignity. If so, the violation relies on the subjective belief of the victim, and will be up to the Indian government to bring the issue to U.S. attention. The U.S. could simply pre-empt the issue by apologizing, as that is usually protocol when it comes to remedies for a breach of diplomatic immunities such as this.

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