Wednesday, December 25, 2013

Preet Bharara Replies

US Attorney Preet Bharara defends action against Devayani Khobragade IFS (Full Text)
I had blogged on this issue and append this piece to my blog for the benefit of those who haven’t heard of US Attorney of India origin Mr.Preer Bharara’s views on the subject while Indian media and many who watch/read them hate him as anti-Indian. (T M Menon - 25th December 2013)
There has been much misinformation and factual inaccuracy in the reporting on the charges against Devyani Khobragade. It is important to correct these inaccuracies because they are misleading people and creating an inflammatory atmosphere on an unfounded basis. Although I am quite limited in my role as a prosecutor in what I can say, which in many ways constrains my ability here to explain the case to the extent I would like, I can nevertheless make sure the public record is clearer than it has been thus far.

First, Ms. Khobragade was charged based on conduct, as is alleged in the Complaint, that shows she clearly tried to evade U.S. law designed to protect from exploitation the domestic employees of diplomats and consular officers. Not only did she try to evade the law, but as further alleged, she caused the victim and her spouse to attest to false documents and be a part of her scheme to lie to U.S. government officials. So it is alleged not merely that she sought to evade the law, but that she affirmatively created false documents and went ahead with lying to the U.S. government about what she was doing. One wonders whether any government would not take action regarding false documents being submitted to it in order to bring immigrants into the country. One wonders even more pointedly whether any government would not take action regarding that alleged conduct where the purpose of the scheme was to unfairly treat a domestic worker in ways that violate the law. And one wonders why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?

Second, as the alleged conduct of Ms. Khobragade makes clear, there can be no plausible claim that this case was somehow unexpected or an injustice. Indeed, the law is clearly set forth on the State Department website. Further, there have been other public cases in the United States involving other countries, and some involving India, where the mistreatment of domestic workers by diplomats or consular officers was charged criminally, and there have been civil suits as well. In fact, the Indian government itself has been aware of this legal issue, and that its diplomats and consular officers were at risk of violating the law. The question then may be asked: Is it for U.S. prosecutors to look the other way, ignore the law and the civil rights of victims (again, here an Indian national), or is it the responsibility of the diplomats and consular officers and their government to make sure the law is observed?

Third, Ms. Khobragade, the Deputy General Consul for Political, Economic, Commercial and Women’s Affairs, is alleged to have treated this victim illegally in numerous ways by paying her far below minimum wage, despite her child care responsibilities and many household duties, such that it was not a legal wage. The victim is also alleged to have worked far more than the 40 hours per week she was contracted to work, and which exceeded the maximum hour limit set forth in the visa application. Ms. Khobragade, as the Complaint charges, created a second contract that was not to be revealed to the U.S. government, that changed the amount to be paid to far below minimum wage, deleted the required language protecting the victim from other forms of exploitation and abuse, and also deleted language that stated that Ms. Khobragade agreed to “abide by all Federal, state, and local laws in the U.S.” As the Complaint states, these are only “in part” the facts, and there are other facts regarding the treatment of the victim – that were not consistent with the law or the representations made by Ms. Khobragade -- that caused this Office and the State Department, to take legal action.

Fourth, as to Ms. Khobragade’s arrest by State Department agents, this is a prosecutor’s office in charge of prosecution, not the arrest or custody, of the defendant, and therefore those questions may be better referred to other agencies. I will address these issues based on the facts as I understand them. Ms. Khobragade was accorded courtesies well beyond what other defendants, most of whom are American citizens, are accorded. She was not, as has been incorrectly reported, arrested in front of her children. The agents arrested her in the most discreet way possible, and unlike most defendants, she was not then handcuffed or restrained. In fact, the arresting officers did not even seize her phone as they normally would have. Instead, they offered her the opportunity to make numerous calls to arrange personal matters and contact whomever she needed, including allowing her to arrange for child care. This lasted approximately two hours. Because it was cold outside, the agents let her make those calls from their car and even brought her coffee and offered to get her food. It is true that she was fully searched by a female Deputy Marshal -- in a private setting -- when she was brought into the U.S. Marshals’ custody, but this is standard practice for every defendant, rich or poor, American or not, in order to make sure that no prisoner keeps anything on his person that could harm anyone, including himself. This is in the interests of everyone’s safety.

Fifth, as has been reported, the victim’s family has been brought to the United States. As also has been reported, legal process was started in India against the victim, attempting to silence her, and attempts were made to compel her to return to India. Further, the Victim’s family reportedly was confronted in numerous ways regarding this case. Speculation about why the family was brought here has been rampant and incorrect. Some focus should perhaps be put on why it was necessary to evacuate the family and what actions were taken in India vis-à-vis them. This Office and the Justice Department are compelled to make sure that victims, witnesses and their families are safe and secure while cases are pending.

Finally, this Office’s sole motivation in this case, as in all cases, is to uphold the rule of law, protect victims, and hold accountable anyone who breaks the law – no matter what their societal status and no matter how powerful, rich or connected they are.

Friday, December 20, 2013

India-US Diplomatic spat

India-US Diplomatic spat
This morning’s newspapers too carried articles tom-toming the case of Devayani Khobragade arrested in the US on two counts – falsely declaring almost 3 times the wages she had actually contracted a poor Indian maid from Delhi to work for her, and also meting out inhuman treatment to the living-in domestic making her work for up to 19hours per day! The maid sought legal help from US leading to the arrest of the diplomat. One article with a headline screaming the demand for dropping charges against the Indian diplomat as well as seeking unconditional apology from the US government had this photograph of women holding placards inscribed “USA Govt. Be Sensitive to Women” as they protested in New Delhi. WOMEN?

The main reasons for round-the clock media reports on the case, the non-stop panel discussions on TV and the government and politicians of all hues being on the side of the 39-year old Devayani Khobragade were that she was a ‘young’ woman, belonging to the prestigious IFS, and a Dalit to boot! There are geniuses who argue that Khobragade cannot afford the minimum wages prescribed for similar work in the US, i.e. $9.75 which sort of justifies fixing a private deal with poor Mrs. Sangeeta Richard which according to  US Attorney Preet Bharara, went like this: Devayani Khobragade, an IFS officer of the rank of Dy. Consul General of India while claiming in US visa documents that the worker would be paid $4,500 a month, had the maid sign a second contract, not revealed to the U.S. government, which settled the monthly salary at Rs 30,000 (approx $500 - $600). In plain language this is Visa fraud. When the poor maid files a complaint that she was forced to work for up to 19 hours per day, the offense compounds to an even greater violation of human rights! Here in India the rich and influential do much worse, sometimes unbilled sexual exploitation thrown in to the one-sided bargain. You may blame the Capitalist Satan for all the dirty deeds in the world and organise morchas carrying placards with worse things inscribed on them. But there, in this case, I think all right-thinking wo/men should spare a thought for the poor made who has no wires to pull in India, and her employer could file a quick “counter-case” in India, and move a High Court to issue an order prohibiting her from seeking legal remedy abroad! God, we are indeed a banana republic! Pigs can be slaughtered, but they can’t even squeal.

From published records one could easily be suspicious about the behaviour of Devayani Khobragade if not arrive at a conclusion that this brilliant woman of high pedigree could be economical with truth when she chose to... She had filed a statement with the Ministry of External Affairs (MEA), admitting to own as of 31 March 2012, 11 properties, including flats and land in Maharashtra, Kerala and Uttar Pradesh, some of them as 'inherited' from her father(Uttam Khobragade, a controversial former IAS officer), and others purchased by her. Her declared salary was Rs.50350 (including grade pay) per month, and generated a monthly revenue of Rs.2.26 lakh per annum from her immovable properties. The total value of her assets as per this statement filed with her employer MEA is Rs1.78 crore besides three tracts of land inherited from or gifted to her by her father. But according to the present market value, her properties may be worth more than Rs.6 crore as her 1,000 sq ft in the controversial Adarsh Coop Housing Society (Adarsh CHS) in Mumbai alone is estimated to be worth about Rs.4 crore. Devayaniji claims she bought the flat in Adarsh CHS for Rs.90 lakh from the proceeds of the sale of a flat in Meera Coop Housing Society at Oshiwara in Mumbai which is a plain cock-and-bull story.  A Colaba flat would any day cost about three times as much as one located at Oshiwara.

Devayani’s father Uttam Singh Khobragade was the Chief Executive and vice president of Maharashtra Housing Area Development Authority between 2000-02 and 2004-05. In 2006, she purchases a non-agriculture plot measuring 5,000 sq ft at Alibag from the MHADA which is listed in her affidavit to MEA as worth Rs10 lakh - an understatement  to the tune of 80% at its current market price.

Indian deputy consul general Devyani Khobragade obviously has a record filing false statements back home before being accused and arrested in the US for filing false documents to obtain a visa for her housekeeper, and of paying her $3.13 an hour, about one-third the federal minimum wage.

The Indian MEA has demanded an official apology from the US for shameful treatment of a senior Indian diplomat and the Home Ministry went to the extent of removing security barriers around the U.S. Embassy in New Delhi, also withdrawing airport access passes for U.S. diplomats and demanded return of their IDs. Knowing perhaps they are on slippery ground legally, The MEA has not only promoted Devayani to a higher rank enjoying the diplomatic immunity she lacks currently, and moving also to the UN! (The Hindu editorially condemned this move: "That the government chose instead to transfer Ms. Khobragade to India’s Permanent Mission to the United Nations in New York, with a view to enhancing her immunity, is questionable and casts India’s claim of a nation ruled by law in poor light." Yes indeed! The most stupid move from the MEA is checking on the salaries the US Missions pay in India! In the anxiety to do something to save face, they forgot that the US Missions cannot be expected to pay US rates here; we can blame them if they pay less than the market rates/minimum-wages here!

With regard to the allegation of ill-treatment going round in the media the US Marshals Service clarified in a press release that Khobragade was handled according to “standard arrestee intake procedures” for the Southern District of New York. A strip search, examination of body cavities and the possible use of restraints other than handcuffs such as waist chains and shackles, are automatic, non-discriminatory and legal post-arrest procedures in the US, So also,detaining her with other female prisoners while she awaited handling of her case.

Interestingly, the case is handled by Preetinder Singh (Preet) Bharara an Indian American attorney and the current U.S. Attorney for the Southern District of New York. We might recollect that the Time magazine named him in 2012 as one of "The 100 Most Influential People in the World," He is also known for “Busting Wall Street" for prosecuting and convicting famous Indians like Rajat Gupta and  Raj Rajaratnam. Interestingly, there are people in India who argue now that Barara is anti-Indian! I would assume that he is a great lawyer. From what we understand from his current behaviour, Salman Khurshid, who had taught law for a few years at the Trinity College, Oxford, and is now India’s Minister for External Affairs, has neither the legal skill to beat Barara nor the Diplomatic finesse to move matters smoothly. On top of it his party is trying to get some glory fighting the most powerful country on earth. But others don’t seem to allow the GoP to walk away with it all, the BJP and even the pathetic political rumps like the CI and the CPM are chipping in with anti-American vitriol. Misplaced outrage over an inconsequential diplomatic spat and responding with an escalating and strangely petty series of reprisals is pushing India to ridiculous brinkmanship close to persuading US to mumble "go to hell" and proceed with the normal legal actions against the Indian diplomat. The Only thing on Devayani’s side and India’s at this stage, is the Obama Administration’s reluctance to push matters back to the days of “estranged democracies”  thanks to Indian’s largeness and of course, our democracy.