Takeaways from the Raymond Davis Episode

by Peter Spiro

Now that it appears to have been resolved with the payment of “blood money” to the families of those killed by Davis, there may be some lessons here.

First, the compensation element poses an interesting precedent.  Though presumably ex gratia and at least nominally made by Davis in his personal capacity, payment makes victims whole while avoiding the risk of politically charged prosecutions.  Why not do it in all cases where there’s at least some sort of colorable claim, perhaps even by way of perfecting the assertion of immunity?

Second, the U.S. should explore legislative possibilities for asserting U.S. criminal jurisdiction over diplomats gone bad.  Assume that the killings in the Davis case weren’t justifiable homicide.  Although there are now reports that DOJ was looking into the incident, I don’t know that there would have been a basis for prosecution.  That could be corrected legislatively, and might go a long way to mollifying unhappy foreign publics (or at least give their governments some important cover).

http://opiniojuris.org/2011/03/16/takeaways-from-the-raymond-davis-episode/

3 Responses

  1. Peter-
    I’m not sure this episode could be replicated in other cases — especially outside jurisdictions that don’t accept “blood money” as a means of dismissing criminal prosecution.  The “usual” way of handling intelligence agents who are caught breaking a host country’s laws (which, let’s be honest, is what they are actually employed to do!) is for the host to declare them “Persona Non Grata” under the Diplomatic Convention and release them back to the sending state for return home.  This case was enormously complicated by the fact that Davis didn’t appear to have “official cover” as well as the local politics regarding the presence of US intelligence personnel in Pakistan.   In fact, wasn’t it the lack of official cover that caused the initial agita for the Pakistan government?

    Regarding prosecution in the U.S., there was a draft “Civilian Extraterritoral Jurisdiction Act” floating around Congress last year. Here is the house version.  The act was intended to fill the gap between military personnel, who can be prosecuted for both ordinary crimes and war crimes committed overseas, and civilian contractors, who cannot.   The draft bill would appear to apply to any civilian or contractor employee.  Perhaps one of our astute OJ readers knows the status of this legislation? 

    My guess is a USG investigation has already been underway to determine whether Davis was a) acting within the scope of his duties; b) acting outside the scope of his duties but in lawful self defense; or c) engaging in unauthorized and/or unlawful acts. At his stage, this mostly appears to me to be a CIA internal disciplinary issue. Of course, there could be much more than meets the eye!  

  2. Peggy, Very interesting draft bill.  I can imagine Blackwater etc lobbying hard to kill it.  State would probably favor but would be a bit player.  Meanwhile, it’s not clear what Davis can be charged with, right?  People are wondering where the Republicans will run him for Congress!

  3. IMHO, Mr. Davis ought to get a medal and the US ought to seriously think about dumping the entire relationship with Pakistan for an alliance with India.

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