New York – Valuable bilateral ties require a graceful resolution of the arrested and charged India’s Deputy Consul General Devyani Khobragade even as we use drones in foreign airspace.

I am sad and concerned with the legal turn of events, and call for an immediate graceful resolution which must be found to avoid damage to much larger American interests in a bilateral and multilateral context.

With the initial shock and awe of the diplomat arrest diminished and reactive, popular unhappiness on the rise, which inherently reduces the “flexibility” of pre-election nations, the legalities of immunity or alleged immigration fraud notwithstanding, the Executive Branch, which includes Departments of State and Justice, ought to recalibrate its exclusive constitutional discretion. Executive Branch constitutional exclusivity over foreign relations was acknowledged recently even by United States Chief Justice Roberts in the April 2013 Kiobel v. Royal Dutch Petroleum case.

Diplomats are frequently asked by the receiving nations to leave, either due to crimes committed in such receiving nation or as a political rebuke of the sending nation for some recent disfavored act in the comity of nations. But, they are not arrested. Peculiar about this arrest is not its legality, but that despite the existence of sound diplomatic and prosecutorial discretions not to criminally charge, which is the diplomatic norm amongst nations, criminal charges were leveled, and that too with a maximum insult-causing “public arrest” effectuated, as opposed to a normal and more dignified “surrender” prearranged with the lawyer for the accused.

We have had Americans, diplomats and others engage in illegal prostitution on foreign soil, which was criminally chargeable – yet charges were not leveled and arrests did not occur. We have had a non-diplomat, Robert Davis in Pakistan, calmly kill two guys in defense of American national security, and a graceful exit was properly arranged and generous “wrongful death” compensation paid. The Robert Davis resolution, was as it should have been – after all, we have a nation to protect at all costs. Judged against that backdrop, the arrest of Devyani Khobragade is puzzling and a self-inflicted wound at best.

Sound judgment requires that a graceful exit out of this bilateral mess occur expeditiously, if American diplomats overseas are to be afforded maximum dignity – a vital and non-negotiable American interest, especially, after Benghazi. One such resolution is to legally permit DCG Khobragade to leave the United States and never return in exchange for dismissing the criminal charges or in full satisfaction of her criminal charges. The awkward horsepower contest between her lawyer and USA Preet Bharara ought not determine valuable and vital bilateral relations, nor should it be permitted to cause avoidable damage to American interests, diplomatic and economic, worldwide.

Retaliatory reciprocity, the poison pill of diplomacy, must be avoided at all costs if we are to protect American diplomats serving around the world, including dangerous outposts. This American interest overwhelms the relatively minuscule interest being vindicated by arresting and charging a foreign diplomat over wages and hours. (Let’s not forget that our entire illegal immigration national debate is on the back of over 11 million underpaid and overworked illegal aliens on American soil and necessary added border security. It gives new meaning to Mayor-elect’s “tale of two cities,” for we really have a “tale of two nations.”)

I’ve always been legally troubled by even a civil claim of wages and hours by a foreign diplomatic domestic worker, even absent employee-exaggeration, as it would create a Hobson’s Choice for the diplomat employer: just admit guilt and suffer reputational suicide or defend by being compelled to disclose in court the official, confidential and legally immune office diary or office calendar, which is the property of their sending nation and not personal property of any diplomat employer. This conflict is an untenable burden in the comity of nations, as it does violence to the legally immune office calendar owned by nations, and not diplomats. It is for this reason, that I have called for the creation of a new immigration category exempt from US labor laws: foreign diplomatic domestic workers.

Absent a quick resolution of this Khobragade mess, this may lead to diplomatic gridlock between the United States and India, while chilling ongoing American multilateral objectives in an unsafe world. In our foreign relations, we always have to choose between what’s more important, such as the necessary use of drones in foreign sovereign airspace to go after terrorists, or arresting Devyani Khobragade; the latter surely wasn’t important, let alone vital.


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