The Raymond Davis case is getting more difficult with the revelation that he was a contract employee for the CIA. This was generally suspected, but its acknowledgement in the US media complicates the politics of any possible settlement.
The US government is sticking to its stand that he is diplomat, which exempts him from prosecution under the Vienna Convention of 1961. It is doing this not just to protect Davis but also to provide cover to all other CIA affiliated agents in this and other countries.
The murky world of security contractors is carefully watching how this incident plays itself out. If the word gets around that the US government cannot or will not stand by its paid undercover agents, the potential for a negative impact on further recruitments could be huge.
It must be remembered that private security contractors became a significant part of US defence and intelligence establishment during the Bush administration. Companies like the infamous Blackwater grew into virtual private armies that were available for a price to carry out any security related function assigned to them.
This could involve direct combat, but most often it was protecting people and supplies and, as we know now, gathering intelligence. There was much hand-wringing in the US media about this privatisation of defence but it had no effect. Private security contractors are now an integral part of the US spying and war machines.
The Davis case itself may just concern one individual, but it has much larger implications on the relationship between private security contractors and the US government. If it goes wrong, it could call into question this entire business of getting private companies to fight state wars.
The rules of combat for national armed forces are covered under the Geneva Conventions and for diplomacy under the Vienna Conventions. Now that the US has privatised parts of its fighting and spying machines, where would the private mercenaries fit in if made prisoner or arrested for other crimes?
The only way out for the American government is to declare them as officials and get them the protections available under the international conventions. This explains why so much pressure is being exerted for Davis. The US government is seeking to establish a principle: that its security contractors also have the same privileges as its direct employees.
It is a bit unusual for President Obama and Secretary Clinton, down to members of the Congress, taking so much trouble for one individual. The compulsion is to establish his status as diplomat and a send a message to all other private contractors that the umbrella of the US government and international conventions will be available to them if they are caught in a jam.
What this means for the Pakistan government is that the pressure to release Davis is not going to die down. The problem is that, with him now being identified as a privately contracted CIA operative, the Zardari government will find it awfully hard to give him diplomatic status. It wants to, and has indicated this to the Americans, but the fear of a domestic backlash is a severe hurdle.
Caught in a difficult situation the PPP government has tried to shift the blame on the PML-N government in Punjab. The problem is that the Punjab government has very little leeway in the matter. A crime was committed by a foreigner and the Punjab police had no other option but to arrest him.
If the federal government had declared diplomatic immunity for this man, the Punjab government would have had to release him. It did not. What was the provincial government supposed to do then? I don’t know what line the PML-N has been taking with the Americans, but to me its answer should be simple. It is not for us to declare him a diplomat. Let the federal government do so and we will release him.
Even now when the matter comes up in the court, any determination would be made on the basis of what the Foreign Office says. If it still does not declare him a diplomat, the court will have no option but to order his trial. If it does, the court also has no option but to let him go. The ball is thus squarely in the federal government’s court.
It is now obvious that because of the political difficulties involved, the federal government has sought three weeks to resolve the matter. This time is certainly not required to determine Davis’s diplomatic status. The purpose seems to be to seek an out-of-court settlement by the US paying compensation money in the shape of diyat.
If this happens, it would be in consonance with Pakistani law and Islamic principles. Some commentators in the Urdu press are taking the line that even if diyat money is paid, the courts still have the right to reject it. While this may be technically correct, it is a counterproductive argument. If there is a legal and Islamic way to resolve the matter, it must be done.
We are an emotional people with a strong undercurrent of anti-Americanism. The Davis case has added fuel to the proverbial fire. But it is a time to take a deep breath and without emotionalism look at our national interest.
Pakistan and the US are interlinked in myriad of ways. It is not just the Kerry-Lugar aid money that we desperately need or the American acquiescence to IMF or other international donors aid packages. Our defence and security needs also dictate a continuing relationship with the United States.
We do not have to be subservient to it, and I do not think we have been. There are many issues on which the US has been pushing us for a long time but, we have not given in. In particular, we have stoutly resisted the American demand for an attack on North Waziristan or its interference with our nuclear programme.
Having said that, there is also no need to get into an adversarial relationship with it. It is true that the Americans should not let the Davis case impact the entire relationship. But this argument cuts both ways. We also should not let it affect our relationship with the United States. Therefore, if there is any legal way to resolve the matter, it must be done.
This incident, however, does give us an opportunity to establish rules of the game for other US “technical and administrative” personnel. Just because they are allowed into the country, does not mean that they have a licence to go anywhere and do anything they want.
A detailed protocol exactly specifying what can and cannot be done by diplomats and officials must be worked out and signed by the two parties. Americans have done what they please in Iraq and Afghanistan and have been spoilt by it. Pakistan is not in this category and it is about time the Americans recognised that.
To repeat a phrase used by Ayub Khan, we want friends, but not masters.
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