Friday, January 6, 2012

De Sousa v. Dept of State, et al. - Diplomatic Immunity Whiplash

The case filed by former FSO, Sabrina De Sousa against the State Department was dismissed by United States District Judge, Beryl A. Howell on January 5, 2012. From Judge Howell's opinion:

"The facts underlying this case are troubling in many ways. The plaintiff served the government and the people of the United States in the Foreign Service for a decade. During the course of her service to this country, she was accused and convicted in absentia of committing a crime in a foreign nation, not for any personal gain, but at the alleged behest of the United States government. According to her allegations, she requested the government’s assistance to counter the charges against her in Italy, but received none and was instead “[e]ffectively abandoned and left to fend for herself.” Am. Compl. at 2. Following her foreign conviction, she faces the risk of arrest and imprisonment if she travels outside the United States, which is a particular hardship in her case both because of the impact on her professional options and because she is a naturalized citizen with family members living abroad. Then, when the plaintiff sought judicial review in this Court, the government did little to minimize the “logistical obstacles” presented by the need to protect against the inadvertent disclosure of classified information, but rather denied her counsel the use of a secure computer to draft filings and “threatened” the continuation of her counsel’s security clearance. ECF No. 63 at 13 n.6. The message that this scenario sends to civilian government employees serving this country on tours of duty abroad is a potentially demoralizing one."
On diplomatic immunity, the Court notes that "the government is alleged to have undertaken an action – the non-assertion of immunity on behalf of De Sousa in a foreign judicial proceeding – that is within its discretion."

Also this:
"The plaintiff’s entitlement (or not) to diplomatic or consular immunity in the Italian proceeding is a non-justiciable foreign policy question. El-Shifa, 607 F.3d at 844 (“[C]ourts cannot reconsider the wisdom of discretionary foreign policy decisions.”). The relevant international treaties on diplomatic and consular immunity make clear that the immunities set forth in those treaties are to benefit states and not individuals. See Vienna Convention on Consular Relations, pmbl., Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820 (hereinafter, “VCCR”) (“[T]he purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.”);

Here are some facts about this case, extracted from the court filing:
  • Sabrina De Sousa is a naturalized U.S. citizen born in India who served as a Foreign Service Officer for the U.S. State Department from 1998 to 2009. 
  • In August 1998, she was assigned to the U.S. Embassy in Rome, Italy as a Political Officer, Second Secretary.

  • In May 2001, she was transferred to the U.S. Consulate in Milan as a Vice Consular Officer for a tour of duty scheduled to end in May 2004.
  • Her employer provided her with a United States government diplomatic passport that explicitly stated that she was abroad on a diplomatic assignment.
  • On February 17, 2003, the plaintiff was vacationing at a ski resort in Madonna di Campiglio, Italy, approximately 130 miles from Milan, Italy.
  • According to news reports, on that same day, U.S. and Italian intelligence agents kidnapped Abu Omar in Milan and, in an act of “extraordinary rendition,” transported him to Egypt, where he was interrogated and tortured.
  • In January 2004, the plaintiff’s tour of duty in Italy ended and she returned to the United States, where she continued to work for the State Department.
  • In July 2006, the prosecutor issued an arrest warrant for De Sousa, whom he identified as one of the four U.S. officials mainly responsible for the alleged kidnapping. The warrant against De Sousa is a EUROPOL warrant, meaning that if she attempts to enter any country in the European Union, she faces immediate arrest and transfer to Italian authorities. Countries outside the European Union could also choose to arrest and extradite her to Italy. Arrest warrants were also issued for several other alleged U.S. and Italian agents.
  • Around the time that her arrest warrant was issued, the plaintiff wrote to then-Secretary of State Condoleeza Rice requesting that the U.S. government invoke diplomatic or consular immunity with respect to her alleged involvement in the kidnapping of Abu Omar and provide her with legal representation to counter the charges in the Italian criminal case. She did not receive any response.
  • The plaintiff’s employer instructed the plaintiff not to communicate with her Italian government appointed defense lawyer or with the media.
  • In October 2008, the plaintiff requested approval from her employer to take a vacation to visit family members in India, but the request was denied because of concern that theoutstanding EUROPOL warrant for De Sousa might lead to her arrest and extradition to Italy.
  • In early 2009, the plaintiff again wrote to the Secretary of State – by then Hillary Clinton– requesting official government assistance with the Italian case, but she again did not receive a response.
  • On February 13, 2009, the plaintiff resigned from her employment with the U.S. government.
  • In August 2009, approximately three months after the plaintiff’s filing of this action in May 2009, the U.S. government agreed to provide the plaintiff with defense counsel in Italy.
The last time diplomatic immunity was big news was when Raymond Davis was arrested in Pakistan and the USG contended that he was protected by diplomatic immunity because of his employment with the U.S. Consulate in Lahore.  He was later reported to be a private security contractor for one of the agencies that must not be named.

This case involves a Foreign Service Officer who held a diplomatic passport at the time of the alleged crime. And from the looks of it, the State Department and the U.S. Government gave her the finger instead of lifting one to help her.  Granted that the allegation of “extraordinary rendition" has such a nasty ring to it .... the government's handling of this case is more than "potentially demoralizing."  How would you like to be in her shoes?  The next time the State Department talks about leadership and "taking care of the troops," somebody please ask nicely about this one.

Sabrina De Sousa v Department of State, et al.

No comments: