The smoking gun
To confuse matters further, the US Embassy has been using the term "diplomat" and "member of the administrative and technical staff" (of the Embassy) interchangeably to describe the killer.
Asif Ezdi
The US authorities continue to issue contradictory statements concerning the Raymond Davis case. They seem to have taken Albert Einstein quite literally when he said, "If the facts don't fit the theory, change the facts." Subsequently, the Americans have tried to change the facts of the case in three important respects.
First, Davis was initially described as a staff member of the US Consulate General in Lahore. Then, without explanation, this was changed and he was said to be a member of the administrative and technical staff of the Embassy.
Second, on January 27, Crowley, the State Department Spokesman, denied that the killer's name was "Raymond Davis". Then last week, a spokeswoman for the US embassy said Crowley had not denied that the name was "Raymond Davis".
Third, the US Embassy has revised its account of the circumstances in which Davis killed the two Pakistanis. The US Embassy's press release of January 29 said he was "confronted" by two armed men on motorcycles who he had every reason to believe meant him bodily harm. Then, on February 3, the US Embassy said that the two Pakistanis had been killed following an "attack on the diplomat by armed assailants." Being confronted by armed men, as everyone knows, is not the same as being attacked by them. According to another account of the US Embassy, Davis was not even "confronted" by the two young men. The British newspaper, Daily Telegraph, reported on the basis of information provided by the US Embassy that the two men had pulled alongside Davis on a motorbike at traffic lights. He saw that one of them had a gun. Apparently fearing that he was about to be robbed, he opened fire, killing both. The claim that they had criminal backgrounds has not been proved. Even if it is true, Davis could not have known about it. Even if he had, he did not have the license to shoot them down.
To confuse matters further, the US Embassy has been using the term "diplomat" and "member of the administrative and technical staff" (of the Embassy) interchangeably to describe the killer. As anyone who has read the Vienna Convention on Diplomatic Convention knows, the two are entirely different categories. The term "diplomat" can only be used for a member of the diplomatic staff, which by definition, a member of the administrative and technical staff, is not.
Yet, it is correct, as the Embassy maintains, that under Article 37 of the Convention, a member of the administrative and technical staff of the Embassy enjoys the same immunity from criminal jurisdiction that a diplomat does. The central issue therefore is whether Davis was a member of the US Embassy's administrative and technical staff. Whether he holds a diplomatic passport from his government or was issued a diplomatic or official visa by Pakistani authorities is immaterial.
The main argument used by the US in support of its claim to immunity for Davis is that the Embassy notified the Foreign Ministry on January 20, 2010 that he had been assigned to the mission as a member of its administrative and technical staff. The fact that his name had been notified would ordinarily qualify him for being treated as a member of the Embassy's administrative and technical staff. But in this case, there are four reasons why this claim cannot be accepted.
First, the Foreign Ministry asked the Embassy to provide some further information about Davis before issuing an identity card to him as a member of the Embassy staff. The Embassy did not provide the necessary clarifications.
Second, Davis' name was not included in the list of Embassy staff given to the Foreign Ministry on January 25, 2011, two days before the shooting, apparently, because at that time he was assigned to the Lahore Consulate General. This list superseded the earlier notification that he was a member of the Embassy staff. He was put on a revised list of Embassy staff submitted a day after the incident only to enable him to claim diplomatic immunity.
Third, the Embassy's press release issued a day after the shooting described him as a consular employee. This is the most authoritative statement on his status.
Fourth, and most importantly, the man has a fake identity. Whatever his true name is, it is not Raymond Davis. The notification of this name by the US Embassy does not therefore confer any immunity on the person who carried out the shooting.
The US Embassy is right about one thing though. It is for the Foreign Ministry to make a determination on the status of the person who goes by the name of Raymond Davis. This determination, as the Diplomatic and Consular Privileges Act of 1972 lays down, is to be treated as final and conclusive.
The Foreign Ministry and the Punjab government must also forcefully take up the case of the third Pakistani who was killed when he was run over by an SUV of the US Consulate General sent to help Davis. US refusal to cooperate in the investigation is a flagrant breach of the Vienna Conventions and our failure to press them harder is simply unforgivable. The federal government and the Punjab government both share the responsibility for this.
The US is obviously deeply perturbed at the fact that Davis is in Pakistani custody. The equipment and weapons he was carrying leave no doubt that he was engaged in unauthorised undercover activity. The people of Pakistan have long suspected that the hundreds of armed men who roam their streets under the US diplomatic umbrella and others who work behind the walls of US missions are here as part of some sinister plan against the country's security. Now there is a smoking gun to strengthen these suspicions and it has a name - or alias: Raymond Davis.
These suspicions could have been dispelled if the Americans had not raised hell over his arrest. Instead, Washington has resorted to crude threats. Hillary Clinton telephoned Zardari reportedly to convey to him that the US is losing patience. This is familiar language. Powerful states employ it to threaten those who do not comply with their demands. Last month, a senior US official publicly warned that US patience at Pakistan's effort to block negotiation of a treaty to ban the production of fissile material was running out. (Historically, the most famous use of the term was by Hitler. In a speech in September 1938, he demanded the cession of Sudetenland to Germany. "My patience," he warned, "has run out." Four days later, the Munich Agreement was signed permitting him to annex Sudetenland.)
It has been suggested by some of our analysts that if we do not release Davis, Hillary Clinton might not smile as broadly as she did at her last meeting with Shah Mahmood. That is possible. But we can live with that. I am sure Shah Mahmood can live with it too. Zardari's visit to Washington could be postponed, though it is unlikely. Even if it is, it will be no tragedy. Whether Zardari will be prepared for the shock is another matter.
But the so-called "strategic dialogue" or "strategic partnership" between the two countries is not under threat. The US needs this relationship as much as we do. It is not for love of the Pakistani people that the US is providing military and economic assistance to us. The Americans are doing so to serve their own national interests.
The government will do a great service not only to the nation but also to itself if it does not bow to US demands on Davis. It will give some credibility to our claim of being a sovereign country and do a lot of good to national self-esteem. God knows we need it badly. Countries that succumb to the first signs of international pressure never attain their national goals. Our problem is that our ruling class and the "liberal elite" allied with them are very comfortable in their cocoons and will risk nothing that could even remotely jeopardize their cushy life style.
The writer is a former member of the Pakistan Foreign Service.
