Certificate of immunity for a diplomat
by Mary W Maxwell
A frequent Commenter to GumshoeNews.com, Speculator 247, has asked Gumshoe to answer the following question:
“Government persons act like they can commit crime with impunity. At the same time, they do, to some extent, try to obscure and keep a great deal of these actions out of the public’s awareness. Also, they’ve led the people to believe that spies/diplomats are allowed by law to do things that most of us would be prosecuted for. So I wondered if that idea was recorded anywhere, and does it extend to others whom we may not recognize as spies/diplomats?”
In the above byline I did not append LLB to my name, as I am not sufficiently confident that I am going to give up-to-date law here. But I can certainly give the spirit of the law, which has not changed.
First, Speculator’s statement that “Government persons act like they can commit crime with impunity” is true. They DO act like that. But the reason is not that their behavior is legal – surely it is 100% illegal. They get away with it because we don’t crack down on them.
You say it’s hard to crack down on persons who wear the police badge or the judge-y robe? Yep, but you’ve got to do it. To refrain from doing it is to bring chaos.
Chances are, many of the police and judges involved are hoping we will “go to town” on their bad colleagues! Consider their plight. They were trained on the premise that if they saw something wrong, they could go up the chain of command to report it. But unless they are really dense they can see that their bad colleagues are protected by the higher-ups. Indeed they may be carrying out orders from the higher-ups!
Speculator 247 also asks if spies/diplomats can legally commit crimes. This is a matter of huge interest. Let me mention a case in which I thought the answer was Yes.
Back in the days of Iran-Contra affair in the US (late 1980s), some members of the CIA said that the Attorney General had allowed them to use drug money to provide arms in exchange for American hostages. I fell for it. Although I was disgusted that the AG would do that, I did not really notice that he has no authority to do it.
Later I woke up and said ha ha, very funny, the CIA agents were not excused from criminality. All that the AG was saying is that he would, personally, not indict them for crime!
Can those CIA criminals be captured and punished? Yes — why not? One possible way would be for a grand jury to indict the CIA member. Another way is that a state’s police arrest the CIA person and charge him with the relevant crime.
I hear you say “They never do that.” To which I reply “They should. What is their problem?”
The problem is that the CIA person (Speculator’s “spies”) has impunity. That’s not a permission – as immunity is. A person who acts with impunity acts with cheek, chutzpah, bloody nerve. Folks are impressed by that and soon enough they think it’s OK. Note, per the definition of impunity, it is the onlooker who contributes the impunity.
I have just been reading Brutal, by Kevin Weeks, about the Irish mafia in South Boston. Weeks was a street criminal alongside Whitey Bulger. A quote from page 244:
“In the spring of 1997… I heard that Stevie Flemmie had gotten up on the stand at the evidentiary hearings in front of Judge Wolf and announced that he and Jimmy [“Whitey” Bulger] were FBI informants and were given immunity from prosecution, that they had been told that they could commit any crime short of murder. I dropped the book I had in my hand, leaned forward yelling ‘What the fuck’!”
(Please note: Kevin Weeks’ little fuckism there was not a display of shock that the FBI told someone to commit a crime. It had only to do with the fact that Weeks had not until that moment known that his lifetime partner in crime was a grass.)
So here we have a case of the FBI – federal bureau of investigation — telling X that X had immunity when really all X was being told was that he should act with impunity.
I hear you say, “Mary, are you totally naïve? The FBI needs to give their informants a free hand so they can help monitor crims.” (Oops, I’d better not comment on whether the FBI has any interest in crims!) Let’s concentrate on Mary’s naivete.
Speculator seems to ask Does necessity supersede law? I say of course it doesn’t supersede law! Granted, there’s a law maxim Necessitas non habet legem – “Necessity has no law.” I take that to mean if you need to break down a neighbor’s door to get access to a safe haven when your life is in danger, the law of trespass must naturally yield.
The maxim doesn’t cover a government formulating a policy to allow criminality. Should the FBI wish to have such a policy, Congress would have to legislate it. Has Congress done so? No.
Sir Edward Coke invoked the necessity maxim to justify the king seizing goods in time of war. All right, that’s reasonable, since the king is thereby protecting society. I can also imagine a state governor overriding the law by a decree at a moment when common sense says it would be ridiculous for him to be constrained by law.
For the executive of government to tell the spy agencies that they have carte blanche to hurt people or steal property is outrageous. Actually it is very telling: it implies that the spy agency has an agenda other than the good of the people. Salus populi just ain’t their suprema lex.
Gary Webb to the Rescue (Almost)
The Iran-Contra affair is murky in that it (allegedly) had to do with two foreign missions that the CIA was involved in – a war against Lefties in Nicaragua, and the resolution of the crisis in which 52 American embassy personnel in Tehran were held “by the Ayatollah.”
But there is nothing murky about the fact that the CIA was importing cocaine from Nicaragua and distributing it (via gangs such as the Crips and the Bloods) to the ghetto. At one point, journalist Gary Webb of the San Jose Mercury and California Congresswoman Maxine Waters presented these facts at a congressional committee meeting.
The denouement, if I remember correctly, was that the Congressman in charge of the committee, Rep Porter Goss, was also in the CIA. He damped down the whole thing and Maxine later lost interest in helping her fellow African Americans who were suffering from the drug problem in the ghetto.
But it didn’t have to end that way. Nor did the murder of the whistle blower, Gary Webb, need to be suppressed. We could have all done the right thing. His murderers could be languishing in San Quentin right now. The organizers of the drug transport could have been found out. Law is our great weapon. Use it!
Official Secrets Act
As mentioned, it is hard to capture the criminal who works for the covert agencies of one’s own government. Ex-CIA man Al Martin tells us that he and others, including the Brothers Bush, used to have the “right” as CIA persons, to engage in such things as real estate scams or insurance fraud.
This helped put money in their pockets – the rule being that they could keep 15% of the take, for having procured funding for some noble cause that the CIA was supposedly engaged in.
So I can see why Speculator asked: “If there’s nothing in the actual law that authorizes such behavior, then how is this type of thing justified?” Al Martin and George W Bush could, at the very least, justify it to themselves. They were tasked with grabbing money through scams.
It is the fact that the feds had official ways to hide these things, via the sanctioned secrecy of “Langley,” that prevented us doing what we normally do when we encounter a thief.
Commies and Ragheads
But of course Speculator meant “Is there some justification for their criminality that we, the public, might find satisfactory?” I say No. After World War II, much was justified by the Cold War. People did accept that a lot of moral rules could be ignored in aid of fighting the big monster – communism.
In a similar way we now have the invented monster, “Islamic terrorist.” Look how we fell into a habit, post 9-11, of breaking all sorts of laws against racial or religious discrimination when it was said that Muslims, even ones born in Australia, were not entitled to the presumption of innocence! In the US, they were rounded up in 2002 with no charges even laid.
The public always falls for it. Mistreatment of citizens is acceptable when an enemy is identified. Have you seen the Youtube video of the residents of Watertown complaining about the way the police and military invaded their homes during the search for the Marathon bomber?
I don’t think any Watertown citizens took action against those home invaders. (The invaded gave the invaders impunity!)
In Australia the monarch, and only the monarch, has immunity from being charged with a crime. We sometime see a minister step down to take the blame that might be “down to the Crown.”
In a 1974 case in Ireland, where the British government was seen to have wrongly killed an IRA member, a new phrase came up: the queen “had been deceived in her grants.” That is, Her Majesty’s grant of power to this minister or that military commander was misused by him.
No person other than the monarch has immunity. States have “sovereign immunity.” This is related to civil action not crime. “You can’t sue the state.” Actually you can sue the state if Parliament has legislated exceptions. Did you slip on the ice on government property? You can sue and the court may award compensation for your broken leg.
Note that “sovereign immunity” does not relieve any officials of government for crimes they commit. Did a prison guard beat you up? That is most certainly a crime and he can be arrested for it. Would that we would understand this.
Some People Do Have Some Immunity
Three groups of officials do have personal immunity: the first is judges – they can’t be sued for making the wrong ruling in a case (But in Sir William Blackstone’s day judge could be imprisoned for obstructing justice. Yeah, 18th Century!)
The second group is legislators. They can’t be sued for the way they voted. But see my Prosecution for Treason as to the possibility of indicting Congresspersons for treason for ripping up the Constitution.
A third group that has immunity is diplomats. Under the Vienna Convention, states agree to treat a visiting ambassador with kid gloves. In fact he could be arrested for a crime, but commonly the host country contacts the sending country and says “Get him outta here.”
Of course the judiciary sometimes offers immunity in exchange for testimony. As I reported at Gumshoe on August 3, 2016, the Coroner in the Lindt Café case offered a certificate of immunity to Officer A, who was about to say he killed Man Haron Monis. This meant his words could not be used against him if he were later charged with murdering Monis.
To recap: there is impunity and there is immunity. We should not be so ready to believe there is legal immunity where it does not in fact exist.
Monarchs, diplomats and states have immunity. Judges and legislators do, too, but only when performing certain functions.
Can covert operators do horrible things with immunity? Come on, wake up, of course not. They have impunity, and that is your gift to them.
— Mary W Maxwell’s next article will be on emergency powers.
Photo credit: keyflux.com