It’s Not the Pakistanis from Whom Papers Were Withholding Davis’ CIA Affiliation

Glenn and I both complained after the US media admitted yesterday it had been sitting on the very obvious news that Raymond Davis was a spook. But I got a number of questions from people who seem to miss the point. Why did I argue for years that Bob Novak shouldn’t have published Valerie Plame’s identity, yet was now arguing that newspapers should have revealed Davis’ affiliation? This article from Michael Calderone gets closer to–but does not directly address–what I think the difference is.

Consider the whole reason why–at least as far as our government claims–we keep spies’ identities secret. It’s to make sure our adversaries don’t know who we’ve got spying on them. Just as random example (just about all these cautionary claims use a similar formulation), here’s what Robert Gates said about the danger that Wikileaks would reveal the identities of our sources to (in this case) our enemies in Afghanistan.

Intelligence sources and methods, as well as military tactics, techniques and procedures, will become known to our adversaries.

The whole point is to keep spies and their sources’ identities secret from our enemies. (In spite of what some have reported about Aldrich Ames and Valerie Plame and Brewster and Jennings, CIA documents I’ve seen in the Plame case made it clear that the Agency believed Plame’s identity was still secret when Novak published her identity; I also suspect that B&J’s cover role was misunderstood.)

But consider this case. From the very earliest reports on Davis in Pakistan, he has been alleged to be a spook and/or Blackwater. Indeed, as Calderone points out, the people protesting in the streets of Pakistan have long been operating on the assumption that he is a spy.

But the shooting had already sparked a diplomatic crisis, with Pakistani protesters calling for violent retribution against Davis and burning American flags and an effigy of the CIA agent on the street. (The protest against Davis pictured above took place a week ago). And in the Pakistani media—where conspiracy theories involving the CIA are commonplace—Davis had already been pegged as a spy.

Furthermore, we have every reason to believe that Pakistani intelligence (replete with its ties to Al Qaeda and the Taliban) know and knew who Davis is. Members of the ISI have said as much, for starters. Plus, there are the many allegations that the two men whom Davis killed had ties to ISI; if, as it appears, the ISI was tracking Davis, then it’s a sure bet they knew before he was arrested that he was some kind of spook. And if they didn’t know before they arrested him, then there are the items they captured with him, not least his phone, which allegedly had numbers of people in the tribal regions. Thus, regardless of what Davis has said, the ISI likely already has a good idea who his sources are.

So almost all the people we’d like to keep Davis’ identity secret from–the Pakistani government and the Pakistani people–already either knew or have been operating based on the assumption that he is a spy. The one exception, of course, is the Taliban or other extremists, who would no doubt like to know whom Davis was speaking to in their ranks. But to the extent they haven’t already guessed those details, the Pakistani government now must be trusted to keep them secret, if they will. There’s no more or less that the Taliban and Al Qaeda will learn about Davis based solely on US reporting confirming he is a spy.

In other words, had they revealed his CIA affiliation, American newspapers would not have revealed anything to the key people we’re supposed to be protecting Davis’ identity from; those people already knew or assumed it.

So the people from whom American newspapers were withholding the truth about Davis’ identity were not America’s adversaries, but the American readers who hadn’t already read all the Pakistani coverage on Davis.

So why do it? Why did the government ask–and the newspapers accede–to keeping Davis’ identity from the American people?

It’s possible that the US government believed that so long as no one had officially confirmed Davis’ identity (to the extent they have, which they have only insofar as newspapers have made it clear the government has freed them to publish these details now), it would put him at less risk in Pakistan. Perhaps they figured it would be easier for Asif Zardari’s government to at least move Davis into a safer location so long as they were able to pretend he was a diplomat. But that seems to misread the source of pressure on the Pakistani government–the people in the street and those egging them on–who are already quite certain that Davis is a spy.

Perhaps, too, they were just engaging in a kabuki with the Pakistanis, giving them as much space as possible to pretend they don’t know Davis is a spy, making it easier for our allies within the Pakistani government to operate as if they believed that he was just a diplomat. Though, it seems like enough people in the ISI want this information to be public to prevent that kabuki from working.

The government may have asked newspapers to prevent Americans from discovering that our government is engaged in a similar kabuki. Thus far, the State Department has pretty consistently crafted its words for ambiguity: Davis is a member of the administrative and technical staff at the consulate, he is entitled to immunity; the State Department continues that line, even as everyone knows it’s more complicated than that. But last week, President Obama went further than that (as Glenn points out).

With respect to Mr. Davis, our diplomat in Pakistan, we’ve got a very simple principle here that every country in the world that is party to the Vienna Convention on Diplomatic Relations has upheld in the past and should uphold in the future. And that is if — if our diplomats are in another country, then they are not subject to that country’s local prosecution.

We respect it with respect to diplomats who are here. We expect Pakistan, that’s a signatory and recognize Mr. Davis as a diplomat, to abide by the same convention.

By not confirming what everyone watching this process closely no doubt already knew, the American press lowered the cost for Obama of making statements like this in an effort to get Davis released. (Me, I think he’d be best served simply repeating the State Department line, that Davis is a consulate technical staffer.)

Now that may well be the most honorable reason for the government to ask newspapers to hold this news (though not necessarily an appropriate reason for newspapers to agree to do so), though if that’s the reason I doubt it’ll work.

But there is one other reason–the one I referenced when I noted how ambiguous the reporting on Davis’ precise position remains: if there is a reason why Davis’ precise status would be either politically explosive in the US (still a Blackwater employee) or illegal (a JSOC one), then the government would love to invoke Davis’ safety as a way to avoid any political consequences for being caught having deployed Davis for the mission he’s on. But if that’s the goal, then newspapers are still actively helping the government cover-up. Even 24 hours later, there is still no clarity on his role, though some of the more obedient newspapers are reporting a government official claiming, dubiously, that Davis was just a security person.

The newspapers may have believed government cautions that by publicizing Davis’ status it would make him less safe (though that claim really doesn’t seem credible). But to the extent they’re still not reporting what Davis was doing, they seem more likely to be shielding the government from having to admit uncomfortable details about what we’re doing in Pakistan–and who’s doing it.

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  1. hotdog says:

    The more the empire’s apologists scream about “protecting” operatives, the more obvious it becomes they really only want to protect their own lying, incompetent, criminal asses. Nobody at the top gives a crap about some little mercenary pawn, they just care about their crooked dealings being exposed.

  2. ondelette says:

    No, I think they’re still trying to affect the sentencing in the Pakistani court case, or prevent the guilty verdict. The State Department works on the premise that it should never admit culpability for any offense under any international charge and should fight all charges to the bitter end. And the nearly mandatory sentence for this in Pakistan is hanging. The political consequences for that both domestically here and internationally with Pakistan and Europe would be a nightmare, Pakistan knows that, the U.S. knows that, Europe knows that, and this is the way State fights in international court, so maybe this is the way they fight here. It has worked fairly well for them in the ICJ in the past.

    • emptywheel says:

      Right, but as I pointed out, that’s totally irrelevant to whether a bunch of newspapers report–sourced to Pakistani sources or anonymous American ones–that Davis is a spook. As I point out, State has continued to say that Davis is a consulate employee and has immunity.

      So while I agree that’s the approach (though it is being fought differently than similarly placed Americans), that’s totally unrelated to the question of whether you ask newspapers not to report on Davis’ affiliation.

      • ondelette says:

        Well, the newspapers don’t seem to understand that what the State Department says to them doesn’t necessarily have anything to do with the fact that the State Department happens to be speaking to them. The newspapers, like many other Americans, believe they are the center of attention. They are not. They are just part of the chessboard, or at very best, one of the pieces.

        • emptywheel says:

          I think I’m still confused.

          State has been consistent, both before and after the govt gave them the ok to publish.

          So they go to court and say precisely what they have been: Davis has immunity as a technical staffer of the embassy. The courts all know official cover exists. So there ‘s really no reason to inhibit state from saying that.

          So why make a ham-handed effort to try to prevent the papers from reporting on this, particularly bc if it had been reported w/VERY anonymous sourcing on the US side “according to sources,” it’d be a lot less damaging than the “Govt has said it’s okay to publish this info they tried to hide for 3 weeks.”

          • earlofhuntingdon says:

            One would have thought Nixon’s plight would be easy to remember: it’s the cover-up, stupid, that has greater legs than the crime. The exception being, I suppose, when the cover-up succeeds in masking the crime, a la Scooter Libby, an outcome that all too obviously doesn’t seem to have happened here.

          • ondelette says:

            They were trying to deny legitimacy to the story. Whether or not it was going to work, that’s that standard operating procedure to continue trying to the bitter end. Once that cat’s out of the bag, they can’t do that but they can continue to insist that the immunity still holds, as they are doing. That’s all. They are totally focused on what happens to their guy in the Pakistani courts or keeping him out of the Pakistani courts. They don’t care how silly they look or whether they look consistent or anything else. They know how bad it is that the guy shot people, and how bad it will be if the guy gets hanged and that’s all they care about.

            As for the press, that’s totally different. No clue here as to what motivates the press to tell a completely bogus story when they are sitting on a 90% accurate one and they know it.

            • emptywheel says:

              Yeah, I just don’t think that the NYT reporting on anonymous sources lends a story any credibility. At the least, the US request (assuming it’s for the motive you suggest, which I don’t necessarily buy) miscalculated, bc they’re worse off now. But in any case, a quiet, well managed confirmation wouldn’t have detracted from the credibility of the story.

    • earlofhuntingdon says:

      I think that’s a fair point. Continuing to claim that the emperor’s clothes are more seemly than Beau Nash’s is essential to the legal arguments that would be made that support Mr. Davis’s immunity. It’s the kind of arguing in support of the indefensible that Orwell railed against and which has become the Bush and Obama DoJ’s specialty. The question is whether the Pakistani government or court have sufficient reason to accept that characterization.

  3. orionATL says:

    is this not most often the case:

    those organizations and individuals who should not have known, say the identity of an agent, know it, or those who should not have had atomic plans, have them,

    leaving only the american people, media, and the congress ignorant of this and related information,

    and leaving individuals or organizations who do know it, and who might inform the rest of the public about it, fearful of prosecutorial retribution at the hands of a president for disclosing the info.

    so

    there are really two co-equal reasons why the american government punishes americans why name its spies or spying schemes, war plans, war machinery and organization, federal funding budgets, etc:

    1) to protect legitimate currently active individuals and activities

    and

    2) to protect american presidential administrations. agencies, and top-level officials from revelations of incompetent or illegal strategies or programs in order to avoid public criticism.

    then there is the matter of motive:

    vice-president cheney’s act of disclosing Valéry plume’s identity was entirely retaliatory. it had no legitimate component of “informing the American people” in it. in fact, to the contrary, it was intended to keep the american people from debating whether invading and occupying iraq was a good idea.

    identifying davis in the press in the u.s, serves the objective of “informing the american people” in a circumstance in which the barn door had been opened long ago.

    this particular info about a cia scheme in pakistan is all the more important since the u.s. cia, at least on its black operations side, has routinely demonstrated itself a thoroughly incompetent security bureaucracy since its creation 70 years ago.

    one simply can never be certain when it is that the u.s. cia is operating relatively sensibly and competentl and when it is operating due to a wild hair in some presididntial-level administator’s ass,

    viz

    http://emptywheel.firedoglake.com/2011/02/21/9-million-per-sort-of-kind-of-important-terrorist-hit/

    .

    • Gitcheegumee says:

      Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him,–‘I see no probability of the British invading us’; but he will say to you, ‘Be silent: I see it, if you don’t.’

      The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.

      Abraham Lincoln

      NOTE:Oops, I put this on the wrong thread.

  4. hotdog says:

    There is a possibility he was set up. Look what the charred bodies of mercs in Iraq precipitated there. If he is publicly executed, the Pentagon would use the event as its “bomb the hell out of them because they’re barbarians” card for years.

  5. skdadl says:

    I agree that there’s no contradiction in your position on the Plame and Davis cases if we’re talking about publication/suppression. The sin of the corporate media in both cases is pretty much the same: the journos who outed Plame were laundering propaganda for Cheney’s office (at least); the editors who agreed to pretend that Obama wasn’t lying about Davis are doing the same thing by a sin of omission — once again, they are collaborating in propaganda work rather than living up to the protected status they claim (and of course deny to WikiLeaks).

    Because I’m not a citizen, I don’t feel any need to defend the CIA or anyone who works for it, but that wasn’t what was important about the Plame case anyway, at least not to me. Cheney was important, and a grovelling complicit media were important, and they still are, however their grovelling is expressed.

  6. Mary says:

    The one exception, of course, is the Taliban or other extremists, who would no doubt like to know whom Davis was speaking to in their ranks. But to the extent they haven’t already guessed those details, the Pakistani government now must be trusted to keep them secret, if they will.

    You’re right and imo that’s why, with the US still selling hard on diplomatic immunity in the CIA contractor piece, that’s why this story came out in Pakistan

    http://tribune.com.pk/story/122105/cia-agent-davis-had-ties-with-local-militants/

    Call records of the cellphones recovered from Davis have established his links with 33 Pakistanis, including 27 militants from the TTP and Lashkar-e-Jhangvi sectarian outfit, sources said.

    There’s a lot in that piece that’s outlandish – but the putting out the info that the ISI has the call records and can break down contacts to 33 Pakistanis, including militants with two separate groups, was put out imo for a reason.

    I do also think that some of the kabuki has to do with a concern that people start digging into just what Davis was doing. That seems to be the thing that is still a bit dodgy. You are hearing everything from Davis working to recruit FOR the TTP unbeknownst to our gov, to Davis working to get bioweapons or fissible materials into al-Qaeda hands to set up a ruse or America to engage in targeting of sensitive installationss, to meetings with informants for drone strikes to performing as the acting station chief and so on and so on.

    The AP article on him inidicated that he was there to provide security – but think about that. He’s the guy who was in a rented car, alone. Not providing security for someone else, not acting a part of a team. I wish we knew a few more details on the SUV – was it following him and providing HIM with security back up (which would be an odd thing to do for the guy who was there to be the security backup for diplomats) or was it back at the consulate and called out from there? Reports seem to go both ways on that and it makes a big difference -whethere there was a distress call to the consulate and it sent a car out, v. a car from the consulate with an armed team following Davis as his back up.

    In particular it makes a difference when you read one of the reports of what happened as the SUV was making its gunpoint getaway. Apparently on its way back to the consulate, one story goes that they were dumping out knives, ammunition, a cloth with an American flag and a blindfold. Rayne had asked how they could tell it was a blindfold, but if it was of the type that was used for GITMO shipments, there wouldn’t be much confusion on that front. So what was a consulate car that was going to Davis’ rescure from an attempted robbery doing with multiple armed men, knives, bullets and … a blindfold?

    We know Obama still loves extraordinary rendition and when so many outrageous stories are being floated, I always wonder about the ones that aren’t floated. Was Davis working on a snatch and grab? Was a Pakistani about to be kidnapped? Maybe not – but a blindfold is an odd piece of equipment for a consular vehicle going to the rescue of a diplomat who was almost robbed.

    • Gitcheegumee says:

      I hope this doesn’t seem too simplistic,but most folk when they are robbed call the local police…they don’t run from them.

      • earlofhuntingdon says:

        Depends on who you are and the reputation of the police. To take an extrem example, in 1938’s Austria, a Jew wouldn’t have run to them because a crowd broke the plate glass window of his store. Someone in Mr. Davis’ apparent profession would not normally want too close an association with the police, but for other reasons.

      • Mary says:

        True – and most folks who are robbery victims don’t have two dead bodies in the street, one of whom they went after and finished off as they were running away. Point made.

        • emptywheel says:

          I think your read is about spot on: these are low-level guys recruited to the task by ISI–and designed for plausible deniability–but not ISI themselves.

    • emptywheel says:

      Right, disinformation to explain away the reports that he has numbers to the tribal lands?

      And of course, the whole reason Zardari’s folks still have a lot invested in kabuki, aside from the fact that this could bring down their govt, is that they’re part of the drones too.

    • b4real says:

      Hi Mary,

      Here is a link to what is really going on in Pakistan despite the many stories being peddled:

      Link

      excerpt:

      On January 25th 2011, just two days before Davis shot and killed the two young Pakistanis, the US Embassy submitted a list of its diplomatic and non-diplomatic staff in Pakistan to the Pakistani Foreign Office (FO), as all foreign nations are required to do annually. The list included 48 names. Raymond Davis was not on the list. The day after Davis shot and killed the two Pakistanis, the US Embassy suddenly submitted a “revised” list to the Foreign Office which added Davis’ name!

      When Pakistani police took Davis into custody on January 27th, he had on his person an ordinary American passport with a valid ordinary Pakistan visa, issued by the Pakistan Embassy in Washington. On January 28th, a member of the US Consulate wanted the Pakistani police to exchange that passport in Davis’ possession with another one. The fresh passport being offered was a diplomatic passport with a valid diplomatic visa dated sometime in 2009. This visa was stamped in Islamabad by the FO!

      • Mary says:

        Thanks b4- we’ve been talking about a lot of that in some other threads. It’s one thing that the US won’t talk about much – the fact that after he was submitted on teh 20th and the FM wasn’t happy, he was taken off and was not on the 1-25 list. They are now trying to say that was some kind of clerical error, but it doesn’t make sense. Especially since he shipped out to Lahore the same day he got into Islamabad. What was so urgent he couldn’t wait on his paperwork?

        I do believe, though, that the pictures they had of his Visa when he was taken were of an “official business” visa from what I have seen in more recent reporting, not an ordinary business visa, but that it was confusing bc that is what they give to a contractor (as opposed to employee) who is there on US gov business. We’ll see.

        There is a lot of discussion about the passport being after-the-fact issued and that Qureshi (the now-ex-Pak foreign minister) is confirming there were problems, although he won’t say what they are (does say he will testify though)

        • bmaz says:

          What about the deal with Crowley and Koh yesterday constantly referring to the 20th date as being January 20 2010 as opposed to 2011?

          • spanishinquisition says:

            Davis had been coming to Pakistan since at least 2009 through the CIA/State/Blackwater. What it could have been was that he had been declared PNG by Pakistan back then and then the US tried to sneak him in again (hence why he wasn’t on the original diplomatic list on 1/20/2011). The US is saying they have an absolute right for him to be covered by diplomatic immunity, but even if that was true, what happens if the sending state sends back “diplomat” that the host state has already been declared PNG prior to arrival? If Davis was already PNG and the US simply ignored Pakistan and sent him back anyway, I don’t think that would hold up that Davis would be entitled to diplomatic immunity despite all the claims from the Obama administration that Davis is automatically entitled to diplomatic immunity no matter what.

  7. skdadl says:

    PS: The editors of the “five majors” — the original five publishers of the cablegate docs — are appearing together on a panel tomorrow in Madrid. Anyone here free to fly to Madrid and put a few tough questions to Keller and Rusbridger? Because I have a little list especially for those two, and the Keller questions would now include the Davis story.

  8. earlofhuntingdon says:

    The English dailies are reporting Davis as having worked for Blackwater/Xe, as a guard for CIA operatives in Afghanistan, though presumably under State Department rather than CIA contracts. Even so, that would seem to put Davis two steps away from having “normal” diplomatic immunity.

    Several things might be explosive, separate and apart from whatever Mr. Davis was actually doing as a guard or spy (or both): The Blackwater connection; that the US continues to outsourcing so much to them at such high cost and despite their cowboy record; and that it wants to cover them with diplomatic immunity – really the kind of wholesale imperial exemption from local laws that so pissed off the Chinese during the Boxer Rebellion.

    If true, then the President of the United States claiming Mr. Davis had full diplomatic immunity seems rather to be going out on a limb.

    • earlofhuntingdon says:

      I think that should have been as a guard for CIA operatives working in “Pakistan”. How on earth could I have conflated the two; you’d think I worked for an American alphabet soup agency.

      • Mary says:

        And notice how the guy who is there to be a guard – he’s the one off on his own in the rental car and who has a (maybe back up security? maybe just called from the consulate) car full of guys come to rescue him. Nothing squiffy about that.

  9. earlofhuntingdon says:

    As for Bill Keller’s Times so supinely agreeing to US government requests, on a topic far from obviously directly related to national security, it’s just Bill being Bill. Expecting him to have a backbone on such matters is like expecting David Brooks to write an honest, factually supported column devoid of rightist propaganda. Neither should be rewarded with readership.

  10. spanishinquisition says:

    What I’ve heard absolutely nothing about is the Geneva Convention, with it instead being all about the Vienna Convention. However, spies are directly addressed in the Geneva Convention…and Davis is a both a mercenary and a spy – it looks like Pakistan is following the Geneva Convention by giving him a civilian trial:

    Art 46. Spies1. Notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.

    2. A member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an adverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while so acting, he is in the uniform of his armed forces.

    3. A member of the armed forces of a Party to the conflict who is a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of military value within that territory shall not be considered as engaging in espionage unless he does so through an act of false pretences or deliberately in a clandestine manner. Moreover, such a resident shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured while engaging in espionage.

    4. A member of the armed forces of a Party to the conflict who is not a resident of territory occupied by an adverse Party and who has engaged in espionage in that territory shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured before he has rejoined the armed forces to which he belongs.

    [edit] Art 47. Mercenaries1. A mercenary shall not have the right to be a combatant or a prisoner of war.

    2. A mercenary is any person who:

    (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

    http://en.wikisource.org/wiki/Protocol_I#Art_46._Spies

    • emptywheel says:

      What conflict?

      That’s part of the problem.

      The US spent a lot of time investing in its defense of the category “unlawful enemy combatant.” THey’ve been saying for years that civilian-garbed fighters who are not party to a declared interstate war can be disappeared indefinitely.

    • ondelette says:

      In what sense do the Geneva Conventions apply? Is this an armed conflict? And if so, what type? And are you asserting that the United States and Pakistan are the belligerents? And you are citing the 1st AP, which the United States has not ratified, neither has Pakistan, and if you accept that the United States does accept much of that protocol as customary per Matheson 1987, that document specifically excepts the article you mention on mercenaries, which in turn, specifically doesn’t include as mercenaries persons that are from the same state as the belligerent on whose side they fight.

      I’m not saying you can’t make the case, but you do need to make it, not just cite.

      • spanishinquisition says:

        They apply in that spies get minimal protection – even less so if neither party has signed the Geneva Convention. Part of being a spy rather than a uniformed soldier (and also why they get paid considerably more) is that they don’t have the protections that soldiers receive. It doesn’t make sense for covert spies to be treated better than uniformed soldiers. If you read the articles coming out of Pakistan many Pakistanis view of Davis would fit the definition of a mercenary:

        On 4 December 1989 the United Nations passed resolution 44/34, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention.[6] Article 1 contains the definition of a mercenary. Article 1.1 is similar to Article 47 of Protocol I, however Article 1.2 broadens the definition to include a non-national recruited to overthrow a “Government or otherwise undermining the constitutional order of a State; or Undermin[e] the territorial integrity of a State;” and “Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation…” — under Article 1.2 a person does not have to take a direct part in the hostilities in a planned coup d’état to be a mercenary.

        http://en.wikipedia.org/wiki/Mercenary

        • ondelette says:

          Go through the questions I asked you. First, the Geneva Conventions apply to Armed Conflict. In order to apply them as you are applying them, they need to apply to an armed conflict between the U.S. and Pakistan, specifically, and it must be an armed conflict of international character — i.e. the two countries have to be at war with each other. That’s a prerequisite, since that’s the context for the 1st Additional Protocol to apply at all, period, end of story.

          Second, the two parties to the conflict have to be parties to the protocol, or else acknowledge it as customary international humanitarian law, which as I said, there is some question that the U.S. does, but it exempts Article 47 on mercenaries specifically, you can’t cite that, and Pakistan isn’t on record as accepting the protocol at all. And as I said, the definition of a mercenary in the 1st AP specifically excludes nationals of the belligerent state party for which they are fighting. The UN Mercenary Convention contains the same language.

          Now you want to talk spies, well, they are dealt with in the 4th Geneva Convention as well, but again, you need an armed conflict of international character between the U.S. and Pakistan. Do you think it applies? All that they would say is that a spy should be treated as a civilian in custody except that for a short time after they are taken into custody, they can be deprived of communication to keep them from communicating secrets to the enemy for security reasons. Sound like what you’re after?

          I’m sorry, first of all, the law of armed conflict doesn’t usually apply to states in the same relationship to each other that the U.S. and Pakistan are, and second, the treaties you are applying are in some cases not treaties the U.S. and Pakistan have agreed to, and in others don’t apply.

          • spanishinquisition says:

            “Now you want to talk spies, well, they are dealt with in the 4th Geneva Convention as well, but again, you need an armed conflict of international character between the U.S. and Pakistan. Do you think it applies? All that they would say is that a spy should be treated as a civilian in custody except that for a short time after they are taken into custody, they can be deprived of communication to keep them from communicating secrets to the enemy for security reasons. Sound like what you’re after?

            I’m sorry, first of all, the law of armed conflict doesn’t usually apply to states in the same relationship to each other that the U.S. and Pakistan are, and second, the treaties you are applying are in some cases not treaties the U.S. and Pakistan have agreed to, and in others don’t apply.”

            So why should Davis get treated better than a uniformed soldier? Also I take it that you haven’t been following what has been said in Pakistani media or else you would know the answer to your questions is that the perception is that the US was waging a convert war against Pakistan. The Pakistani perception might or might not be wrong, but considering the US to be a belligerent is currently happening now.

            • ondelette says:

              Spies are civilians under the Geneva Conventions. They are treated under the 4th Geneva Convention. But the first question is whether or not they apply at all, and that goes to whether the U.S. and Pakistan are at war. The U.S. is waging covert war against whom in Pakistan? Does that Pakistani government believe that they are at war with the U.S.? Do U.S. and Pakistani troops wage war on a battlefield somewhere in Pakistan? Is there a declaration of war or an authorization of use of military force somewhere? On either side? Does General Kayani believe himself to be at war with the Americans? General Petraeus with the Pakistanis? The reason for asking those questions is that you are using laws for international armed conflict.

              There is no “get treated better than a uniformed soldier”. Spies in an international armed conflict get treated as spies, a special class of civilians initially and then the same as civilians afterward, uniformed soldiers as POWs, at least according to the Geneva Conventions.

              bmaz, Davis isn’t an enemy combatant unless the Pakistanis determine him to have been part of an enemy belligerent force in a war they are fighting and determine him to have been taken into custody on the battlefield as one. The U.S. is using a definition that isn’t totally in agreement with the Geneva Conventions in that it isn’t making battlefield determinations, in my opinion, and there is a belief that there is a category other than civilians and combatants, which the Geneva Conventions does not have. If the Pakistanis want to adopt the same framework, they would be free to do so, and the U.S. would be in a weak position to complain, but that isn’t the Geneva Conventions, in my opinion.

              I’m not defending Davis, I’m just telling spanishinquisition that in order to use Geneva, other than common Article 3 and AP2, you need to parties to an international armed conflict and the person involved has to be detained by one party as the someone from the other party.

              If you want to use common Article 3 or AP2, then you’re asserting that it’s something else. The U.S. does this with respect to a lot of stuff (common Article 3), but neither the U.S. nor Pakistan has ratified AP2, so you don’t have very much to work with, so there isn’t very much to cite except customary law, at which point you might as well be back discussing the Vienna Conventions again.

              • bmaz says:

                Actually the US has declared all kinds of people to be enemy combatants, including its own citizens (Jose Padilla). It would be quite easy for the Paks to declare Davis an enemy combatant if they wanted to, there are all types of theories they could gin up that would be no less absurd than the crap the US throws out. If the US doesn’t play within the rules, treaties and conventions you cite, why should the Paks?

                • ondelette says:

                  spanishinquisition was citing treaties. I was pointing out that those treaties don’t apply unless conditions are met. I’m not arguing on behalf of what the U.S. does. The U.S. concept of the Geneva Conventions and how to apply them is the product of 40 years of concerted sovereigntism and lousy teaching of international law at the nation’s top law schools plus the concerted efforts of people in our government to dismantle what they could of it. So it isn’t too surprising that the Supreme Court does a lousy job of it, the Congress does a lousy job of it, and we abuse it and make it up on the fly. But that isn’t what spanishinquisition was doing. He was quoting statutory IHL. I was saying he needs to meet conditions before it applies. Qingchu?

  11. earlofhuntingdon says:

    From the Tribune piece you cited:

    American officials said that with Pakistan’s government trying to clamp down on the increasing flow of CIA officers and contractors trying to gain entry to Pakistan, more of these operatives have been granted “cover” as embassy employees and given diplomatic passports.

    However, “The government and security agencies were surprised to know that Davis and some of his colleagues were involved in activities that were not spelled out in the agreement,” a source told The Express Tribune.

    Based on Davis’ detention, it would seem that Pakistan and the Obama administration no longer agree on the desired level of CIA incursions into Pakistan. But it’s laughable that the Pakistanis were “surprised” at some of his work; more likely, they simply disagreed with it.

    I wonder if Mr. Davis will be sent to an undisclosed location while awaiting a trial that will happen after Godot arrives, a fate based on the no doubt mistaken belief that his actions made him an “illegal combatant”, if not an “enemy” one. It would be sauce for the American goose, but not a flavor that would encourage Mr. Obama to revise his own government’s detention, charge, trial and incarceration policies.

  12. earlofhuntingdon says:

    The 2006 US-Pakistani agreement seems to contemplate the domestic use of both CIA agency personnel and outside contractors working for them. It’s rules would govern, though I suspect we are beyond legal analyses and into bareknuckled bargaining. The legal dance is to keep the issues in suspension pending their outcome.

    I have no ax to grind with Mr. Davis; I’m sure he’s a brave, well-trained soul who earns his Blackwater salary. I fault a government that prefers very high-cost mercenaries over its own employees and does little to monitor or restrain their activities, and fails to impose sanctions when they overstep their remit.

    Tell me again which enemy we’re fighting, where and at what cost?

  13. earlofhuntingdon says:

    If Mr. Davis is a spy, he is likely to have all sorts of ID’s, depending on what needs them for. His ID’s won’t answer the question of what he does and who he does it for, regardless of the intermediaries involved in paying or employing him.

    The latter are important, however, in assessing in how credibly and cost-effectively the USG is going about its business. They also impact an objective analysis of whether Mr. Davis had full or partial diplomatic immunity and whether it applies to shield him from liability for the acts he’s accused of committing.

    Whether he obtains it regardless of that analysis is really what’s happening now. How the US and Pakistan resolve this episode, I suspect, will determine their relationship for the next few years.

    What I think the Davis case opens up, and one reason I suspect Mr. Obama came out so directly and early in Davis’ defense, is our pattern of contracting/outsourcing our intelligence and field ops, and the pattern for our imperial involvement in the Middle East generally.

    With the spread of greater plurality, if not democracy, in governments across North Africa and the Middle East, that pattern will concern hundreds of millions of people, many of whom will not like it one bit.

    • Gitcheegumee says:

      I was thinking the same thing Earl, regarding multiple aliases and passports.

      One thing that kept buzzing in my head was a phrase from an Asia Times piece excerpted yesterday by passepartout,here, on a previous thread.To wit:

      passepartout February 21st, 2011 at 3:59pm

      US national Raymond Davis contacted his family members back in American and talked with them for 12 minutes, reported a private TV channel Sunday.

      Davis told them the situation and asked them to pray for his release. He said to his family members not to worry about him but only pray for him. He said, “I have committed a mistake, and I have realized it.”

      Maybe it’s just me,but exactly what was/were the mistakes -getting caught?Perhaps it is the vagaries of translation,but committing a mistake is an odd phrase. (Committing a sin-as a phrase,however,isn’t.)

      One can only ponder exactly who was the robber and who was actually the robee?

      • earlofhuntingdon says:

        That seems a very odd admission from a soldier who qualified for his green beret, who volunteered for duty with CIA/Blackwater/Xe/State, and who volunteered for duty in as hazardous a zone as Pakistan, with at best a murky official status.

      • earlofhuntingdon says:

        The reporting I’ve read says he had “158 items” on him when he was arrested, including 5 ATM cards, several ID’s, a 9mm Glock, 75 (I believe) rounds of ammunition, a GPS tracker, cell phone, etc.

  14. CTuttle says:

    Hmmm… Very interesting…

    As American newspapers lifted a self-imposed gag on the Central Intelligence Agency (CIA) links of Raymond Davis, along with the Xe, known as Blackwater, it as now been learnt that the alleged killer of two Pakistanis had close links with the dreaded Tehrik-e-Taliban Pakistan (TTP).

    “The Lahore killings were a blessing in disguise for our security agencies who suspected that Davis was masterminding terrorist activities in Lahore and other parts of Punjab,” a senior official in the Punjab police claimed.

    “His close ties with the TTP were revealed during the investigations,” he added. “Davis was instrumental in recruiting young people from Punjab for the Taliban to fuel the bloody insurgency.”

    Call records of the cellular phones recovered from Davis have established his links with 33 Pakistanis, including 27 militants from the TTP and Lashkar-e-Jhangvi sectarian outfit, sources said. Davis was also said to be working on a plan to give credence to the American notion that Pakistan’s nuclear weapons are not safe. For this purpose, he was setting up a group of the militant which would do his bidding.

    The larger picture Davis’s arrest and detention has pulled back the curtain on a web of covert American operations inside Pakistan. The former military ruler Pervez Musharraf had cut a secret deal with the US in 2006, allowing clandestine CIA operations in his country. This was done to make the Americans believe that Islamabad was not secretly helping the Taliban insurgents.

    Under the agreement, the CIA was allowed to acquire the services of private security firms, including Blackwater (Xe Worldwide) and DynCorp to conduct surveillance on the Taliban and al-Qaeda.

  15. MadDog says:

    OT – Via Wired:

    Feds Appeal Warrantless-Wiretapping Defeat

    The Obama administration is appealing the first — and likely only — lawsuit resulting in a ruling against the National Security Agency’s secret warrantless-surveillance program adopted in the wake of the 2001 terror attacks.

    A San Francisco federal judge in December awarded $20,400 each to two American lawyers illegally wiretapped by the George W. Bush administration, and granted their attorneys $2.5 million for the costs of litigating the case for more than four years…

    As entirely expected.

      • MadDog says:

        If one is losing, and losing badly, then their next best strategy is to stall as long as possible. To losers, every second counts. *g*

      • MadDog says:

        Do you think that Tony Coppolino was on his knees to DOJ headquarters begging until the last minute to get permission to file? Twould be in character.

        • bmaz says:

          No, not at all. The Obama Admin long ago, shortly after taking office, gave Coppolino the complete green light to go balls out at all cost. And, no, I am not kidding; that is literally what I am told occurred.

          • Mary says:

            Well that sucks – but you have to have someone like a Bush or an Obama to spawn the Coppolinos.

            I have to admit, I wouldn’t have been surprised if they hadn’t appealed IF they were sure the plaintiffs weren’t going to appeal It was the way to make things go away – there was still no real disclosure and they’d strangled the life out of any new plaintiff possiblities by then and what Walker didn’t really do is anything that chipped away at state serets or put the criminal acts of gov and the support of guys like Hayden and Coppolino for those acts center stage. He did nothing to disenfranchise the Exec branch powers at all – he killed the broad suit and made a very narrow victory for this one, but tacked on as much incentive (the atty fees) as he could to incentivize the plaintiffs to end it all.

            Luckily Coppolino (and Holder and Obama and Gonzales and Yoo and Comey et al) took up law and not art – there’s only so much room for the guys who want to call pissing on a dead body genius in the art world.

  16. eCAHNomics says:

    What’s the rule, ew, or anyone who knows. 90% (?) of the secrets the USG keeps are to keep its nefarious activities from its own population. In well over half of those, foreigners know exactly what’s going on.

  17. TarheelDem says:

    Obama’s statement is not a personal opinion; it’s not even a press statement; it’s a formal assertion of diplomatic immunity. The US has fairly consistently honored diplomatic immunity of foreign spies with diplomatic immunity in the US; they have expelled them instead of prosecuting them when they have committed crimes.

    Obama cites the Vienna Convention, which covers diplomatic immunity and enforceability of treaties, not the Geneva Convention.

      • earlofhuntingdon says:

        True, it seems, but the US might have claimed diplomatic status for him that was acknowledged by the Pakistanis. I don’t think it’s clear. The US hasn’t helped its own case (or has it?) by muddying the waters and claiming inconsistent things about Davis, his employment and his work. As EW and others have suggested, I don’t think formal analysis of his status under the conventions will determine the outcome here.

        The MSM keeps talking about national interests without saying much about what those are and whether what we’re really doing is helping or harming them. What I hope this does is stir debate beyond progressive blogs about what our “strategy” is for the ME and South Asia, how are we going about it, through what resources (internal and external), and at what cost (government employees at X, contractors at 3-5 times X). What are we really achieving (making more enemies than friends?).

        We are obviously after oil and even more precious minerals. We want to form a cordon around Russian and Chinese interests, and to have long term bases from which to pursue those and any other interests that may strike our fancy. One of those might be to limit the spread of nuclear technology, though that seems debatable. We are also attempting to combat “terrorism”, although our actions are so out of proportion in number and cost compared to the size of the threat as to be laughable if that were the sole or primary goal.

        What are we giving up to pursue those goals? Our social safety net is in tatters, our infrastructure is crumbling nationwide, our school and university systems are being hammered by persistent cuts, job prospects are a maelstrom driven by outsourcing and changes in business models. Meanwhile, the government that might help fix those problems, or which has the sole ability to fix them, is being taken over by corporate interests that are immune to all but the most concerted efforts to change their profits-at-any-cost, consequences for the people be damned course.

        All those things and more are being held hostage to a trillion dollar a year defense and intel budget and the imperial goals it supports. A broader debate would be worthwhile.

        • bmaz says:

          Well, the one thing we do appear to know, Davis was not listed on the Pak master list issued a mere two days before the shooting incident. Now I guess the US can chirp that he should have been etc. but the evidence to date, assuming it is credible, is that he was not. That plus former Foreign Minister Qureshi being so adamant that Davis was not legit present the Paks with at least some legitimacy if they want to fight the US diplomatic immunity claim. I too suspect that sooner or later some accommodation will be made, but it has got to be pretty touchy for the Pak government. Especially in light of how touch “the people” seem to be with their governments in that part of the world these days.

          • earlofhuntingdon says:

            Oh, I agree the US probably got sloppy and is engaged in massive CYA here. I can only imagine the threats and cajoling it is attempting in order to disengage Mr. Davis and to keep a lid on what he was doing and how he was doing it.

            Regardless of how it is presented, I expect the substance of a resolution to include compensation for the dead, without any admission of wrongdoing, and promises that we won’t ever do such silly things again, promises that will be treated with the same sincerity with which they are delivered.

            Getting back to business as usual will be more trying than usual, given the public nature of what look like crimes, the things Davis was actually investigating and what he found out, and the shifting sands of who in Pakistan we now need to accommodate.

    • spanishinquisition says:

      Saying someone is a diplomat doesn’t automatically make them a diplomat. Also it was first asserted by the Obama administration that Davis was part of the consulate, which consular immunity differs from diplomatic immunity.

  18. MadDog says:

    More OT – Via Josh Gerstein over at Politico:

    Justice drops defense of Donald Rumsfeld, Paul Wolfowitz

    The Justice Department under President Barack Obama has quietly dropped its legal representation of more than a dozen Bush-era Pentagon and administration officials – including former Defense Secretary Donald Rumsfeld and aide Paul Wolfowitz – in a lawsuit by Al Qaeda operative Jose Padilla, who spent years behind bars without charges in conditions his lawyers compare to torture…

    …One private attorney involved in the case, who asked not to be named, said the Obama administration apparently concluded “its duty to represent the defendants zealously, which includes the duty to argue any and all defenses, can’t be discharged for reasons of policy and other government interests.”

    The Justice Department continues to represent only a single official, Defense Secretary Robert Gates, in the suit…

    …Legal ethics experts said the Justice Department’s withdrawal could stem from qualms about a full-throated defense of Padilla’s treatment while in military custody. His lawyers claim that Padilla’s captors in the brig subjected him to abuse including sensory deprivation, prolonged isolation, imminent death threats, forced drugging and interference with his practice of Islam.

    “Some of the [defendants] may have wanted to make more extreme arguments about the legality of their conduct than the Justice Department was willing to accept,” said Stephen Gillers, a professor of law at New York University…

      • MadDog says:

        I’ve not heard yet whether the ACLU & Co. is going to appeal, but I’ve got to think they believe they have a strong case, but they’re in the 4th Circuit so it’s got to be an uphill slog.

    • earlofhuntingdon says:

      The smarm in that article is that while the DoJ is outsourcing its defense of these bozos to private law firms, at the government’s expense, it’s only paying up to $200/hour.

      I’d take that mind, though my heart wouldn’t be in it. But inside the Beltway, legal support staff are billed out at that rate. It would be unlikely to cover the fully billed cost of a newbie associate, let alone a senior associate or partner, at any firm with the experience to handle these cases. Odds are, there’ll be a little pro bono work involved here, sacrificing a little firm profit for the Gipper.

      • MadDog says:

        The smarm in that article is that while the DoJ is outsourcing its defense of these bozos to private law firms, at the government’s expense, it’s only paying up to $200/hour…

        I laughed at that rate as well. The bottom of the Beltway barrel so-to-speak.

      • emptywheel says:

        It’s not like every single one of these mokes isn’t stinking wealthy.

        Though I imagine O’s DOJ recognizes that this relitigates the torture issue (see my next post).

    • Mary says:

      Interesting where they drop them. After they’ve won the first rounds. So it’s a matter of how they want to handle the arguments on appeal as much as anything.

  19. apishapa says:

    As far as I know Valerie Plame was not on trial for murder and neither was her husbnd. Her name was leaked for spite and placed her and her associates in danger. THis guy was on trial for murdering pakistani citizens (apparently just for the hell of it) and I think we do have a right to know whether or not he is a CIA agent. I’m not a supporter of diplomatic immunity for serious crimes anyway, but comparing his outing to Valerie Plame is not even close. She was a good and faithful represetative of our government in a dangerous job and our government failed her. This guy was a loose cannon, wreaking havoc in our name. He needs to be stopped. And our government needs to be stopped from employing assholes like this.

  20. spanishinquisition says:

    QUESTION: A new topic. What can you tell us about this Raymond Davis, the – who works at the U.S. Consulate in Lahore and who apparently shot and killed two would-be robbers? What’s his position there? Does he have diplomatic immunity?

    MR. CROWLEY: Well, let me say three things. First, I can confirm that an employee at the U.S. Consulate in Lahore was involved in an incident today. It is under investigation. We have not released the identity of our employee at this point. And reports of a particular identity that are circulating through the media are incorrect.

    http://www.state.gov/r/pa/prs/dpb/2011/01/155402.htm

  21. orionATL says:

    E of H@51

    “what are we giving up…”, ff?

    that is the fundamental relevant question of our times, and by our times, i mean RIGHT NOW, not a leisurely 30 or 50 yr interval.

    the bush GWOT disaster – both foreign and domestic policy disaster that it has been – has been continued since 2009 for one reason only

    so that prez obama could not be attacked for

    “who lost —?” or

    for “that terrorist act would not have occurred if only …”

    in short, so that obama foreign “policy” and “security policy” could not be attacked in 2012.

    in my view, we have been paying an enormous hidden, additional price both

    for our rightwing’s intellectual dishonesty in its ruthless pursuit of power

    and for the obama presidency’s political cowardice, couched as “realism”, and its lack of political imagination.

    we WILL leave afghanistan (but pakistan?) soon, but we will leave it poorer ourselves not only in our international reputation,

    but far more importantly, in our domestic economic growth.

    like painters on a ladder,

    empires have been known to fall for overeaching.

  22. foshizzle says:

    The powers in this country by whatever name we call them, they all know, play the fear card. The fear card, stops the masses from critcal thinking or rationality. They know, if they throw in a boogey man, it’s a done deal. However, what they don’t know is, many of us are maxed out in the fear department. Just like the people around the world, fear is losing it’s mojo. Pisstivty is in, and raising fast. It’s raising from the bottom, and those at the bottom are starting to feel very crowded, because of the millions of new members in the last ten years,No need to apply, just show up! Although being broke is not a prerequisite, it does validate your worthyness of being in the soon to be majority.

    Some, in our wildness dreams, never thought we see such growth in the broke club, not in America, the land of milk and honey. Hell, we all thought, it was our fault, that we’re here down on the gound because we didn’t apply ourselves. Here with the drug user’s, drop out’s, shell shocked veterans, the mentally challenged, unwed mothers, the list is long, most none club members, used to just refer to us a loser’s. And we were mostly invisible.

    Some of those new members are fresh from the middle class, and they are starting to except their new reality, and it ain’t pretty. But I must confest, it’s fascinating to listen to their stories, going from zero to hero, actually, livin in the care free world of television stuff. Livin that American dream, big house, 2 or 3 cars, vocations to exotic places.

    However, those of us that’s never had any of those things share their pain. I, and others like me, are hoping they’re able to get back to the world they’re accustom to, because it seems as tho some believe, because of the steady growth of the poor and broke folks culb. That we’ve got to much, and they need to cut spending. But sadly, I don’t think they, realize, that family, that moved out of their home in that really nice neighborhood, with the great school, and attended one of their summer BBQ’s, they’re now regretable members of the broke club, just like that! It’s them, that needs the most help in making the tansition, not us, who never were able to raise up. We never got out of poverty. We are experts at doing without, but that American dream comsumer, that you helped create, that’s the one you need to worry about. It’s been nice chatting with you, now I must go and greet more new members at the church. Poor folks always understood compassion. We never had much of anything, and that anything, we’ve always been willing to share. Please excuse any grammatical errors, I didn’t want to wake my former middle class, jobless college educated new friend up to proof read it. Perhaps, that’s a silver lining, we’ve got, many educated people here now,kinda like a sub city, at the very least, we’re not as invisable anymore, maybe that’s a good thing!!! Then as my old friend Al would say,”Look, where has those so-called, super smart educated fools has gotten us?” He would also say,”I ain’t educated enough to tell you, what will work, But dammit I’m old enough to tell you, what won’t work!”

  23. Mary says:

    Here’s a short piece after your own heart, EW.

    http://tribune.com.pk/story/122107/retracing-the-path-trailing-raymond-davis/

    It has a timeline track for various movements.

    Arriving at Islamabad on the 20th and leaving the same day for Lahore. Hmmm. So not around at the “mission” he was being assigned to and not there for the battle that was going on apparently.

    Once he gets to Lahore, 5 more American nationals show up on the same date. After the shooting, the place he was staying was cleaned out by two Americans.

    • earlofhuntingdon says:

      I think the analogy of Mr. Davis and Francis Gary Powers of U-2 fame is a stretch, but the stakes are high, what with rattles for democracy echoing across North Africa and the Middle East. The US’s actions there the past ten years, just for example, have not endeared us to local populations or anyone we haven’t bought out completely. Given that Pakistan is actually more important to US imperial policy than Afghanistan, our relations are likely to remain somewhat strained in perpetuity.

      • bmaz says:

        THAT is what is bugging the crap out of me. I know that these things – lists – are apparently done at the first of the year. But the data we have seen so far points to January 20, 2011 being a critical and noted date, but January 20, 2010 came out of nowhere yesterday in the briefing transcript. The morons in the press there were incapable of picking up on the discrepancy and inquiring. But Crowley and Koh(?) were consistent and persistent in their use of 2010. Crowley is a dope I can see him making the mistake, but Koh(?), who supposedly studied all this bugs me.

      • Mary says:

        EPU’d but you and bmaz and others have noted that (I admit I would have missed it bc I still say 2010 a lot when I mean 2011) and I’m not sure what to make of it.

        It does highlight the issue of the possible Dec 2009 issue, that’s for sure. The timeline article above says he first came to Pakistan in Oct. of 2009 and has been in and out of the country 9 times since then, mostly to Peshawar.

        Then there’s the story from Dawn:

        http://www.dawn.com/2011/01/28/us-official-guns-down-two-motorcyclists-in-lahore.html

        that hasn’t been confirmed or denied or really asked about much here in the US, that Davis had a prior run in in Lahore, even though most of his trips were to Peshawar

        A senior police officer told Dawn that Raymond David was among four people who were detained by security personnel near Lahores Sherpao Bridge on Dec 9, 2009, when they were trying to enter the Cantonment area in a vehicle with tinted glasses. They were armed with sophisticated weapons. The intervention of the US consulate led to their release, the officer recalled.

        It says the intervention of the consulate led to their release, but you have to wonder how the VC 1963 was viewed by the authorities in Lahore at the time. There might have already been one round of the Consulate trying to get him released as a Consulate employee, only to have the local authorities say that a gang of four guys all carrying “sophisticated” weapons in violation of law was a grave breach. So it might have been that the resolution to get Davis and/or the others out back then was saying that they were embassy staff with full immunity.

        You can easily spec one scenario where he was already bailed out once with immunity a year ago January and was asked to leave or where he was informally put on non grata status.Or even formally. His name may have been given as something else then – I don’t know if the confusion over Raymond David was typos and quick reporting related or something else – like the Lahore authorities looking at what his name was for the prior incident perhaps.

        I’m thinking not a lot of non-cover contractors get aliases supported through the State Dept, if that ends up being an element of the story.

        BTW – are we just calling the Sr. Adamant Authority from the briefing Koh, or did they really trot out the big gun for that briefing?

  24. orionATL says:

    so, my summary is this:

    the u. s. had been conducting a spooky activity in pakistan, maybe since 2008, that the paks (or more properly, some part of their government, like isi) did not approve of.

    the u.s. persisted in various devious ways, despite pak “resistance”.

    eventually (jan, 2011) the isi decides to “tackle” this u.s. activity.

    they set up a sting/robbery with davis and two of their agents (or stringers).

    something happens.

    agents/stringers are dealt with by davis with extreme prejudice, for unknown reasons that, on the surface, appear foolish.

    davis is arrested by paks; a party coming to davis’ rescue, presumably his lahore roomates, is spirited out of the country on senator john kerry’s afghan;

    and the american prez demands a return of a “diplomat” who was never truly a diplomat.

    how will this end?

    davis will be released.

    when depends on pak good political judgement and american pressure.

    personally, i would not release davis for at least six months or until a completely unrelated crisis occupied the citizenry.

    • spanishinquisition says:

      I don’t know what is in Pakistan’s best interest. If they do release him, they risk turning themselves into the next Egypt, but if they don’t release him what is the US going to do? It is the Pakistanis who hold the cards as the US wouldn’t risk carrying out any serious threat and if the US was to try something, Pakistan can use a thousand paper cuts against the US…inflame Afghanistan, inflame the Indians, cozy up with China, etc. However, purely as a matter of international justice, I don’t think that Davis should be able to get off scott free…if a Pakistani ISI agent was in NY and killed two people in broad daylight (possibly shooting them in the back to boot and being caught with spy equipment in the car), I don’t think we’d just pat that ISI agent on the back and send them back to Pakistan without any repercussions for Pakistan because Pakistan claimed the spy was a diplomat.

      • Gitcheegumee says:

        Remember the Letelier assassination attempt in broad daylight in DC,back in the seventies?

        Ordered by Pinochet and part of Operation Condor?

  25. cregan says:

    Empty, why waste you time on explanations?

    You can save much time by just recognizing the obvious–the difference between the two cases was that complaining about one got a republican in trouble and complaining about other didn’t, or wouldn’t.

    There is no other reason.

    It is certain that if complaining about the revealing of Davis’s CIA ties could get Bush in trouble, or Boehner, you’d be doing it. Full force.

    But, since it doesn’t, it’s not a big deal.

      • Kelly Canfield says:

        Thanks for that Marcy. I read here ALL the time, but rarely comment as I can’t add anything better than what the regulars here do, and I’m glad to see this smackdown finally.

      • emptywheel says:

        And I should add, for a guy who at least likes to LOOK like he’s bound by normal rules of logic, this is below you. Got a refutation to the logic in the post? Let’s see it? Want to claim I’m not equally as critical, at this point, of Obama as Bush? Go ahead, kill any shred of credibility you’ve got.

        • cregan says:

          Sorry that I touched a nerve. You know I disagree with your basic position on Plame.

          And, I see you basically not raise a voice regarding any other disclosure of an undercover agent.

          Oddly, I have told you several times I respect your detailed analysis of issues, so, there is no doubt I respect the good faith of the blog.

          However, in this case, I see it differently than you. I see tortured logic, that makes some sense on one level.

          It could easily be argued that “those in the know” figured Plame was an agent. Did that or would that have made it right? Is the standard, “well everybody figures it’s so, so might as well just confirm it?”

          No matter what the “street thinks” or “everyone watching this process closely no doubt already knew,” they didn’t KNOW, they speculated.

          Now, Davis has almost no possibility of any kind of fair, unbiased trial. Left unconfirmed, with some doubt, he had some chance.

          Getting all over the disclosure of someone, Plame, who was in no immediate danger, and likely no long term danger (as shown by no consequence to her other than a quit job over the years), and then be ho-hum about the disclosure that very likely could cost the person their life in a for real, no joke way, left me with no other conclusion.

          Now, I don’t see that you have gotten onto Obama for disclosing or leaking someone’s identity.

          So, you have not convinced me of any real principle involved.

          And, I don’t smack down so easy. I’ve had people insult me in many ways, I never tell them to fuck off. Why waste the time?

          • Rayne says:

            This bit:

            It could easily be argued that “those in the know” figured Plame was an agent. Did that or would that have made it right? Is the standard, “well everybody figures it’s so, so might as well just confirm it?”

            Really. Why don’t you just give the hornet’s nest another ignorant slap with that stick?

            What part of NOC do you not understand after all these years?

      • earlofhuntingdon says:

        As you pointed out, about the only people who didn’t know or believe that “Davis” was an intelligence operative were the citizens of these United States, and they could readily find out via the Internet, if not their hometown newspaper.

        The Pakistanis also had the items Mr. Davis had on him when arrested, which are not standard issue for diplomats, or for administrative, clerical or cultural staff. The agreed common designator for spies as “cultural affairs officer” fooled no one; it was simply a mutually convenient nom de guerre. The case is wholly unlike that of Valerie Plame.

        Any casual reader of this blog or FDL would realize that we are bipartisan critics, eagerly critiquing issues and hypocrisy regardless of which side of the aisle purveys them. Our progressive bias is readily apparent and can be factored into an assessment of the merits of our arguments.

        Yes, the NYT still owns the Int’l Herald Tribune, the Boston Globe, etc.

        The larger issue here is the NYT’s eagerness to vet its stories in advance with the US government, thus blurring the line between censorship and self-censorship, and to withhold information at its request and in a manner that makes what they do say about a story misleading by omission, at best. You and Glennzilla rightly take the NYT to task for failing to fulfill a primary responsibility of journalism.

      • cregan says:

        Now, actually, I looked again over what I originally wrote, and I think I agree with you. I didn’t state the opinion or position as well as I should have. By that, I mean the way it was put WAS a bit disrespectful.

        It didn’t need to be to make the point.

        My point is much better stated above.

        I say that in spite of knowing there will be a number of “I told you so’s,” etc. But, that is the nature of the beast, and I understand that.

    • bmaz says:

      So, you register and appear for the first time in order to leave a completely off point comment that has no breaking news or particularly interesting value at all?

      That is not how we do it here. Try again.

  26. orionATL says:

    ondelette-

    spanishinquisition made an interrsting addition to this conversation @21; i would say a creative addition.

    your comments offer a contrary view.

    the difference between you two is that spaninq offers his up non-dogmatically. not so for your comments.

    i suggest you quit taking up space and bandwidth trying to turn the law into mathematics.

    if you have learned anything at all about american federal govt policy in the last ten years it surely should have been that

    the law, at its border with politics, is completely malleable and subject to whimsical interpretation if the politically powerful wish it to be so, and if the judiciary offers no counter-challenge.

    that is THE central lesson of the bush and obama presidencies.

    so, back off your tedious, extended logical arguments that the geneva conventions could not apply. those arguments entirely miss the ultimate conclusion to be drawn which is that the u.s. and pakistan will employ whatever treaties or conventions serve their purpose and ignore the balance.

    as president g.w. bush put it so succinctly:

    “…[the law] is just a god-damned piece of paper.”

    • emptywheel says:

      Actually, I think ondelette and I are both pointing out a pretty important point that underlies why the Davis situation may be so volatile. We’re not at war w/Pakistan (which is why the legal distinction is important). But Davis was almost certainly involved in the secret war that the US and Pakistan are engaging on the tribal lands, the US w/o congressional approval and Pakistan in defiance of public opinion.

      • ondelette says:

        Pakistan’s war is not secret, it was declared by both houses of Parliament and announced by the Prime Minister on TV to the public, against the TTP, May 5, 2010. The U.S. is not allowed to operate in Pakistan, but the U.S. drones have been being called in by Pakistan repeatedly against TTP targets. Pakistan is also very dishonest about its relationship to the proxy groups related to Kashmir and related to Afghanistan. The U.S. is dishonest about its actions in Pakistan, they are not limited to what Pakistan has called in or permitted by their “hot pursuit” border agreement. Pakistan has also banned Blackwater in the country, and that is a matter of the State Department because it is the State Department with which Blackwater has its contract.

        There is an area of the country that is designated as an area of armed conflict, if you look at the area that was under the control of the ICRC during the Pakistan Flood as opposed to the area under the control of the IFRC on this map (last page). But that isn’t a conflict between the U.S. and Pakistan, so Davis isn’t a prisoner of war or a spy under Geneva or anything.

        He’s a spy in a mess where he was spying on Pakistan and was a member of a group Pakistan told America they couldn’t have there and America told Pakistan it wouldn’t put there, but he was spying on a group Pakistan said it wasn’t controlling and would disband and would outlaw and yada yada, too. So everybody is hoisted on everybody’s petard at the same time. And as for treatment of prisoners, Pakistan held some of the lawyers in the Lawyer’s Movement for a mere 3 days and one of them had kidney failure. They’re hardly angels themselves on that score, either.

      • Gitcheegumee says:

        almost certainly involved in the secret war that the US and Pakistan are engaging on the tribal lands, the US w/o congressional approval and Pakistan in defiance of public opinion—

        That is such a succinct, superb explanation of the situation.

        Thank you for making all this easier to understand and assimilate.

  27. orionATL says:

    ew@98

    yes, but proving or disproving vienna conventions vs geneva conventions in a contest with sinq says little about what legal rules the two nations will claim apply.

    furthermore, the volatility re u.s. prescence in pak is not a function of “at war” or “~at war”;

    it is a function of pakistani citizens, media, and politicians having developed a mindset over time, based on american actions within their nstion, about american intent toward their nation.

    i need to get off this itouch to a real computer to relist some extremely enlightening news reports first listed by gitch.

  28. orionATL says:

    from gitcheegumee, the wikileaks of emptywheel,

    this extremely valuable (for background and for the davis affair) set of articles:

    [ Gitcheegumee February 22nd, 2011 at 3:10 pm

    80 In response to JTMinIA @ 71

    You may also be interested in this if you perhaps missed it on an earlier thread:

    Here is an informative excerpt from an article ,dated September 2010:

    ……

    NOTE: The entire article is worth a read for additional background details.

    Blackwater’s Black Ops | PKKH.tvSep 23, 2010… security cell where double murder accused Raymond Davis is … …. CIA officials Cofer Black and Robert Richer for “representation” to …

    http://www.pakistankakhudahafiz.com › Feature – Cached

    BTW, The date of Bhutto’s assassination was December 27,2007. ]

    this comment appeared as #80 in Mary’s 2/21/11 post on diplomatic immunity. the major cite is this one:

    http://www.pakistankakhudahafiz.com › Feature – Cached

    it is actually a series of articles some repetitive, many others very informative.

    • Gitcheegumee says:

      Orion,PLEASE put a snark tag next the reference to me as the Wikileaks of EW. *g*

      Wow, I didn’t see all that info when I originally posted the excerpt.

  29. orionATL says:

    among the articles referenced was one giving davis’ name as “david raymond”.

    another article asserts that davis’ task in lahore was to assassinate the leader of a major muslim religious and charitable organizations – one whose enforcement arm was responsible for the mumbai massacre.

    a major background article was this one:

    http://www.pakistankakhudahafiz.com/2011/02/13/the-truth-behind-samjhauta-tragedy/

    put this and the mumbai attack together and you can see that the indian and pakistani intelligence services have been playing games with peoples lives for a long time.

  30. orionATL says:

    gitcheegumee@104

    well, you sure have some fine talent for coming with cites and reads a lot more informative than the ordinary sanitized nytimes articles :-) .

    • Gitcheegumee says:

      Well,even a blind pig finds an acorn now and then.

      As I had stated to Mary, I have been totally out of the loop for a couple of months now, and really was just attempting to familiarize myself with the Davis imbroglio.

      So much info…and hard to know what or who to believe in the reportage.

      But I must admit I fell out of love with the NYT very long ago. Shame.

    • Gitcheegumee says:

      Thank you for the compliment…I hope I didn’t appear dismissive of your courtesy,Orion.

      My apologies ,upon rereading,if I failed to appreciate your kindness.

      Mea culpa.

  31. Mary says:

    A few Davis links before I get back to work

    http://www.telegraph.co.uk/comment/8344078/US-pawn-ensnared-in-Pakistans-power-politics.html

    Seems to maybe be getting anonymous support for our theory of the two guys getting tagged for a job by ISI. Also frames this all as a tug of war between Army and Zadari. Also seems to confirm they pulled up in front of Davis. Really selling hard on immunity.

    http://www.reuters.com/article/2011/02/23/us-pakistan-usa-cia-idUSTRE71M6DF20110223

    Hosenball reports that the guys spirited out of Pakistan were also CIA contractors who were given Islamabad diplomatic cover while in Lahore. What are all our Islamabad “staff” doing in Peshawar and Lahore?

    http://www.businessinsider.com/cia-operative-raymond-davis-threatens-hunger-strike-from-pakistani-prison-2011-2

    Davis is threatening a hunger strike. I won’t even go there. And he wants security cameras removed. And maybe he’s hoping for Rush to make him a cause célèbre.

    http://mangalorean.com/news.php?newstype=local&newsid=224137

    Most interesting one for me. Qureshi (Pak FM who wouldnt give in and has lost his job says the Interior Ministry is the source of the screw up. They are the ones arguing about the passport and visa. Per Qureshi:

    He said: “The foreign office was contacted by the US embassy after his arrest and police remand.”

    “When I was briefed by the foreign secretary, it was evident from the record that Davis is not a diplomatic staffer,” Qureshi said. “The same was conveyed to the president and prime minister in a meeting a few days later.”

    “I fail to understand why the foreign office has demanded three more weeks from the court to reply on the diplomatic status of Davis because it was crystal clear already,” he said. “The character of officers in charge was beyond any doubt“.

    “The contradictions in the case in this case have been rampant throughout. Even the foreign media carried stories about the exact identity of Davis which further complicated the matter.

    “The US should understand that dynamics have changed in this country and it is a democratic regime in power.

    The talk about the record, and the implication elsewhere in the story that the US might have tried to back in and approach the interior ministry for docs on Davis instead of going through the FM, all makes you wonder more.

  32. orionATL says:

    there is one detail released (by whom) about raymond davis that bothers me the most – that he had the names of members of the pakistani taliban on his cell phone.

    this is not impossible, of course, but it seems so unlikely.

    what spy with half a brain would carry a cellphone around with the numbers of 27 members of a terrorist group banned by the pak govt?

    i suppose the number of davis’ cellphone could have been traced later to the other numbers by reviewing wiretaps, but that is not the story being peddled.

    so was davis a us spy who was very careless?

    or was he the cia hired bodyguard that the us government has declared him to be?

    if the “the-numbers-on-the-cellphone” story proves to be concocted then that would move matters in davis’ favor.

    whatever davis’ work for the us govt,

    a second major question is why his supervisors would have put him back in pakistan and in lahore if he had had previous run-ins with authorities there, as reported?

    serious shotrage of specialized personnel comes to mind as one reason.

    but whatever the reason, the decision backfired in a major way.

  33. orionATL says:

    gitcheegumee,

    not at all. your appreciation was nicely, humourously, expressed and clearly understood as such.

    the compliment was well-deserved.