US diplomat's wife kills UK teenager, claims diplomatic immunity

Another assertion of DI:

I see this thread got re-bumped after a few months, but still think it’s worth responding–it also isn’t factually correct. Negligent driving that causes death can be prosecuted criminally in the United States and in fact is done so.

Courts and prosecutors definitely don’t attempt to charge everyone who makes a mistake driving, negligence here has to rise to a certain legal threshold. But it isn’t accurate for Sacoolas lawyer to blanketly claim the crash would not be prosecuted in the United States. I think it would be a “close call” on whether a prosecutor chose to press charges or not (beyond very basic ones like “failure to control” of a vehicle, which are typically traffic violation type charges.)

Another bump.

First day of the first meeting between Biden and Johnson. And look what’s on the agenda…

Harry Dunn death: Biden sympathetic over Harry Dunn case, says PM - BBC News

How much of this rests on Biden’s discretion even if he wanted to act? Any notion that he could now strip her of diplomatic immunity would seem very odd to me. What could the Executive do, in principle?

Is the question of whether or not she actually had diplomatic immunity settled?

I thought as a technical matter it was settled that she qualified for immunity, and that the U.S. would need to waive it to remove protection. But I could be mistaken.

Diplomatic immunity isn’t a right of the individual. It’s a claim if immunity by the sending state, recognized by the receiving state. The receiving state can’t cancel the immunity retroactively, but I don’t see why the sending state couldn’t waive immunity.

If so, that would be an executive decision at some level.

Yes, I understand all that. My point is that Trump chose not to waive immunity at at the time. It seems a little odd to me that Biden could later reverse that decision. How long would someone have this potentially hanging over them? Could immunity be waived ten years after the event?

And there was enough of an uproar that the US agreed prospectively to remove diplomatic immunity in similar chases in the future.

I will be shocked if the immunity is retroactively waived. I expect Biden to apologize or something.

If the US were to lift immunity, I don’t think it would be considered retroactive.

“Retroactive” is used in the sense of changing a verdict or outcome. That hasn’t happened.

There is a charge pending against her in the UK courts. That has not been resolved.

Any time the British authorities ask the US authorities to extradite her to face the charges, the US authorities are saying " we are asserting her diplomatic immunity." That’s a current status that she has, by virtue of the agreement for diplomatic immunity between the US and the UK.

The US government could decide to stop asserting the immunity. That would not be a retroactive change to her status; it would be a statement from the US that from that point forth, she does not have diplomatic immunity. The change in her status would apply from that point forth, rendering her liable to British court process. She had not acquired any vested right to be immune forever from British court process.

No, I do not think that is right. When she did the accident, she had immunity. They can’t go back and remove immunity she had in the past.

True, she is not immune forever, if she did something else. They already removed her diplomatic immunity.

Biden is gonna apologize, extend sympathies, etc. He will not turn her over.

According ot the US State Department, when a foreign diplomat is accused of committing a crime in the US, the Secretary of State will request a waiver from the sending nation, after there has been a full investigation by US LEO. If the US position is that foreign countries can waive the immunity of their diplomats after there has been a decision to charge under US law (but for the immunity), it would seem the same should apply in reverse: that the US can waive immunity for a US national after there has been an investigation and a decision to charge in the foreign country, which is exaclty what has happened here.

It’s not so much that it’s retroactive. But it seems unfair to me that it could be held over someone and never resolved. The foreign legal system might have a mechanism to just leave the charge open indefinitely, until such time as the person is brought to trial. If the U.S. does not have to make an irrevocable decision, it could be hanging over that person for the rest of their life that the U.S. might at any time change their minds and revoke immunity.

I took a look at the international treaty governing diplomats. There’s nothing in art. 32 that says a refusal to waive immunity is irrevocable.

Of course the USA could have lifted immunity. But it did not.

It did not so far. Is there anything in US law that says the US government cannot now waive immunity?

Diplomatic immunity is a diplomatic, not a personal, privilege. I’m not familiar with any constitutional precedent saying that because you had diplomatic immunity at the time a crime occurred, or at some point in its adjudication, the U.S. could not decide to waive that immunity. Diplomatic immunity is controlled by the State Department but can also be overridden by executive discretion. This is not similar to say, immunity from prosecution that you get in exchange for say, witness testimony. There is constitutional precedents that govern when an individual might lose such immunity. Diplomatic immunity is to my knowledge largely seen as a political question by the courts, so if Biden personally made the decision that he was waiving the immunity and would not block extradition, I don’t think Sacoolas would have a strong legal case that would prevent her extradition to the UK.

That being said my understanding is the main reason the higher ups at the State Department, and by proxy both Trump and Biden (who imo both were working from advice) have not done this is there’s certain standards in diplomatic relations and it isn’t great to set a precedent that established norms of diplomatic immunity get waived simply because a major ally stomps its feet really loudly. Like the U.S. government cares very little about Anne Sacoolas, but it might care that if it waives immunity here, it sets a precedent and other, perhaps less honorable, countries than the UK could stomp their feet and demand the same at some point down the line.

As I understand it, the fact that Sacoolas had direct immunity was a secret due to some secret clause in an agreement with the UK. Which is why this became so dramatic early on, the initial reporting on this case was that her husband as part of his job had diplomatic immunity, but his immunity didn’t ordinarily extend to her. And she didn’t have a job that conferred immunity. This created a perception when she fled the country and the US decided not to extradite that something improper was going on. But I believe what’s subsequently come out is Sacoolas actually had personal immunity the whole time, just for some reason the agreement that covered such people with immunity in the UK was secret up until this point. I don’t know enough about it to know why. But it probably is telling that (I believe) the decision was made to not continue the practice of having persons in that category be given diplomatic immunity going forward.

That argument would be more credible if the US government, in similar circumstances in 1997, had not stomped its feet to get Georgia to reverse a decision to invoke diplomatic immunity for a Georgian diplomat who struck and killed a pedestrian in Washingon, DC:

From NYT; dunno if paywalled:

It’s insane that she’s allowed to get away with manslaughter. I get diplomatic immunity but there ought to be some clause among ‘civilized’ nations (debatable whether we still qualify) that if sufficient evidence can be produced by a commonly understood standard, then immunity is revoked and the diplomat (or spouse) gets tried.

The individual in question can get out from under this terrible uncertainty simply by asking that immunity be waived and agreeing to return to the UK to see proceedings are concluded through the law of the land.