New York – The impressive Mission Impossible-like clockwork in the removal of the Richards family, two days prior to the public arrest of DCG Devyani Khobragade, albeit, with warm coffee and courtesies extended, leaves one scratching one’s head while suffering a legal headache caused by a “Gordian” tumor – competing sovereignty and competing legal actions. If these events were not ill-advised and tragic, they could make for a great paraphrased performance of “Who’s on First” by famed comedians Bud Abbott and Lou Costello.
After all, no one has cited the existence of an empowering or enabling prior judicial determination in the United States adjudicating Sangeeta Richards as a “human trafficking victim,” and an issuance of a court judgment granting her a “T” visa – such a determination would at a bare minimum, given our cherished adversarial system of justice, have required Devyani, given her physical and VCCR availability, to be notified and given an opportunity to be heard in such a civil or administrative court proceeding.
To further grant, as reported, Sangeeta’s husband, Philip, and their children, Jennifer and Jatin, also a “T” visa, human trafficking victims, while they were all physically in their homeland, on foreign soil and a territory of a foreign sovereign, let alone a friendly one, seems to do un-needed violence to the rule of law and the comity of nations, and is perhaps the most durable injustice that must not be allowed to become a precedent – if merit-based legal sovereignty is to survive in our world of 194 countries.
Even though most witnesses take the oath seriously and tell the truth, because sometimes witnesses will exaggerate or outright commit perjury, our founding generation, a gender-neutral term adopted by our Chief Justice Roberts, created the Confrontation Clause, enshrined in the Sixth Amendment, to fillet open and expose falsity in court. Nobody can argue that a domestic worker in India, making market wages, given a chance to get to be “legal” in these United States may tell a tall tale to win the immigration lottery.
While witness intimidation or witness killing is one of the worst offenses to any judicial system in any country, and the United States and India are no exception, law enforcement is always authorized to protect witnesses within its own territory. To do so on foreign soil requires informed consent by the foreign sovereign. Those who leave India via a scheduled commercial flight are required to fill out and sign immigration and custom forms required by the Republic of India.
It has been widely reported that there was then pending, weeks if not months prior to the American proceedings, legal proceedings in an Indian Court that enjoined Sangeeta, and an arrest warrant had been issued for her, given her alleged violation of the terms and conditions of carrying an official Indian passport, rather than a mere citizen passport. Just as a soldier who goes AWOL is subject to being court martialed and dishonorably discharged from the service, an Indian carrying an official passport is subject to face charges in India. It would be relevant to any court that Sangeeta, given her current tale of victimhood, wins a T-visa and back-doors into a green card. Motive evidence is powerful.
Surely, the persons who were removed could have material evidence relevant to prior initiated judicial proceeding in India, in addition to Sangeeta obviously having material evidence for such Indian proceedings. In that context and history, the extra-judicial removal of foreign citizens of a foreign sovereign, with potential fraud being perpetrated in the exiting paperwork at the Indian airport, leaves one breathless at the audacity and scope of the acts taken to vindicate the alleged violation of our wages and hours laws and related visa fraud, consciously and purposefully aided and abetted by Sangeeta. If one believes Devyani, than Sangeeta was happy to make much more money working in New York than in India.
The immediate resolution of this self-inflicted wound is a graceful resolution, with no lasting aftertaste of excessive legalities. The Nuremberg Laws taught us that law alone isn’t enough to be right, as history is always a better judge, and millions lost their lives to coldly calculated laws that aided efficiently engineered deaths in the Holocaust. The longterm solutions are twofold: 1) create a new category of foreign diplomatic domestic workers, who must be treated at least as well as required by their own nation’s laws; and 2) every nation on earth, despite Ricardo’s comparative advantage, adopts our labor laws, including, hours and wages. Given the Arab Spring, and every person on earth wanting their version of the American dream, including American freedom, we should all work towards such a beautiful day.
Meanwhile, the T-visa is not an appropriate way to grant amnesty to 11 million illegal aliens in the United States, especially, with criminal cases pending against them in their country of citizenship; nor is it proper, at taxpayer expense, to have our diplomats locate the family members of such illegal aliens on foreign soil and fly them all here – 11 million may well mushroom to 50 million legal T-visa holders. Methinks, the AFL-CIO and even cities and states, already under fiscal budget pressures, may loudly object. It is one think to always invite a few Einsteins of the world here, its another to add millions more to the un-employed ranks.
Hopefully, given the proven legal brilliance and sound prosecutorial discretion of Preet Bharara, and the deep, history-rich and lofty experience of our Secretary of State John Kerry, a distinguished lawyer and former warrior, chairman of the Senate Foreign Relations Committee and a presidential candidate, and a history-making president Barack Obama, re-elected to prove history right while washing our constitutional original sin, a resolution can and will be crafted to find grace and renewed dignity for all. Luckily, India, speaking with one voice, itself exceptional and noteworthy, is represented by: a lawyer-poet-author, Foreign Minister Salman Khurshid, a kind and courtly gentleman, fully at ease with the need to calibrate power and reciprocity, and whom I have gotten to know and respect, as I already do Secretary Kerry and said so; Prime Minister Singh, who has earned world respect, including singular honors from President Obama, and I and my wife have witnessed the body hug in the East Room of the White House in November 2009; President Mukherjee, a powerful and proven governmentalist and an India patriot; and principled and capable opposition leaders, in sync with their constitution, to deliver a robust democracy to India. If with this cast of superb bilateral leadership at this time of needless crisis, if we remain mired in an endless well filled with conflicts of law, as if it was mud, then leadership and wisdom would have failed us all. As a superpower, it is incumbent upon us, these United States, to remain a beacon in human history and light the way to a better day. As Christmas and the New Year is upon us, I am sure we will, and accordingly, wish everyone a world that is just and fair, legal and proper, and the pursuit of happiness with equal protection of the law everywhere.