But there is no guarantee that the US government would accede to her request. The president is under no requirement to waive immunity for a minion.
In which case, if the US preserved her immunity now, but for some later political reason tried to waive her immunity years after the event, she might have perverse Constitutional grounds to challenge it on the basis that she had a right to a speedy trial!
(IANAL, but I’d like to play one on TV.)
In those circumstances, I could see an argument based on due process being advanced, based on the prior refusal to waive which she relied on, but I don’t think it would succeed, because foreign relations is one of the core areas of presidential functions.
As mentioned a long time ago in this thread, the way Russia dealt with it when a Russian diplomat struck and killed someone waliking down the street in Ottawa was to try him in the Russian courts, rather than waive immunity to appear in Canadian courts. The Russian government flew all the Canadian witnesses to Russia, where they testified in the trial in the Russian court. The court convicted the former diplomat.
That approach seems to me to be a reasonable accommodation between ad hoc waivers of diplomatic immunity, and someone just walking free.
Don’t know if it’s possible in the US federal court system, if Congress were to pass legislation to allow it.
In America you could prosecute a diplomat in the United States for crimes committed abroad. I think the issue is the UK treats negligent car driving as a more serious crime than the United States. In the US it is fairly unusual to face much in the way of prosecution for a traffic accident without a lot more aggravating factors than were present in this case.
Uh, none of that refutes anything I said. It shouldn’t surprise you a country may wish to get better treatment for itself than for other countries.
I thought she was being tried in New Jersey?
There’s a civil action, but I’m not aware of any criminal action in the US.
The civil trial is in Virginia:
Ms Sacoolas tried to have the civil trial dismissed in the United States, on the grounds that only the UK courts had jurisdiction. THe judge rejected that argument because, as is well known, Ms Sacoolas is refusing to return to the UK. Her argument, in my opinion, met the classic definition of chutzpah: “Killing both your parents and throwing yourself on the mercy of the court as an orphan.”
The judge stated:
As of today, there is apparently a “virtual trial” being mooted. What that means, I have no idea.
I’m afraid these are contradictory statements. If immunity is a vested right at the time of the alleged criminal action, then the US government could not lift that immunity. However, you state that the US could have lifted the immunity.
Which are you saying?
It doesn’t refute anything as a matter of law. It makes the US hypocritical when it advances that argument, and undercuts any attempt to say that it’s acting on principle.
Who said they were acting on principle? It’s rare that asserting national rights is principle based versus self-interest based. Most countries do this. For example the United Kingdom and its leaders know full well Sacoolas had diplomatic immunity and there is no obligation to waive it, the fact they keep bleating about it is entirely out of political self interest. Which is perfectly fine, it is not their job to represent the political interests of anyone other than their citizens.
It was a accident, not manslaughter, and no manslaughter charges are considered.
And yes, immunity could have been waived, but it was not.
It has turned into a political circus now, with the PM and other high government officials demanding “justice”. She has zero chance of a fair trial and will likely be given a long sentence.
It is very simple. The UK asked to extradite. The US says either no (diplomatic immunity, which they did) or yes (we will waive). At that point, the decision has been made. The US has said NO to waiving diplomatic immunity.
There is nothing that says that they can change their minds later.
Diplomatic immunity is controlled by the executive branch and can be rescinded at any time.
I would like a cite that says once diplomatic immunity is given for a certain incident it can later be rescinded for that same incident.
@DrDeth, I revise my position. The US government apparently had a hand in advising (or at least knowingly allowing) her to depart. So, yeah, the US government needs to stand by that.
Exactly what her job there is still a secret- was she just the wife? or a Intelligence operative in her own right?
This article and the discussion also makes clear that other people also killed someone in a accident but were charged with “careless” not “dangerous” driving, which Sacoolas was charged with.
As one commented points out "Regardless of this absurdity, I believe the CPS deliberately overcharged for the specific purpose of securing an extradition warrant to appease Harry Dunn’s family and supporters. This is the principle reason that the U.S. Govt will never waive Mrs Sacoolas’ immunity and as Charlie correctly points out, she would win an extradition case in a U.S. federal court. It also sets a troubling precedent and dare I say that the same people would not like it if it happened to a British diplomat -especially a mother with young children. They and the UK popular press would scream to the rooftops that she’d been overcharged and petition for charges to be reduced if not dropped on compassionate grounds."
Then there is this article:
The 43-year-old was ultimately charged with causing death by dangerous driving last December, but an extradition request was rejected by the US State Department in January - a decision it later described as “final”.
And here:
A former acting general counsel for the CIA, Robert Eatinger, says he understands why the officials have held the line.
If they made an exception for Sacoolas, he says, it would set a precedent.
Diplomatic immunity is “one of the things that the US considers sacrosanct,” he says, adding: "Once you’ve waived it for Mr So-and-So, it opens up other issues."The officials may have good reasons for their decision. One possible concern is that the US wanted to protect operations - a trial could expose details of intelligence work.
Yes, but the details are vague, along with exactly what her position was. It has not been revealed that she worked for the State Dept, but in what capacity is still secret.
Your phrasing here is imprecise. Anne Sacoolas was granted diplomatic immunity “not for a certain incident”, so that doesn’t factually describe what happened. Anne Sacoolas had diplomatic immunity under the agreement between the United States and the United Kingdom that covered her specific situation (specifically a family member of a U.S. intelligence officer serving outside of an official embassy or consular facility) she enjoyed this immunity the moment she entered the United Kingdom on her passport. No adjudication or official process “declared” that she had immunity “for this incident.”
The legal situation was quite clear that she had diplomatic immunity. What occurred then is that the United Kingdom filed a legal extradition request asking the United States to extradite her, and formally requested that the United States waive immunity in this case–something the United States has unilateral authority to do at its own discretion.
The United States declined to waive it in response to the extradition request filed.
There is no legal, constitutional, or precedential mechanism that would prevent another extradition request or another request for waiver. There is nothing that would prevent the State Department deciding to grant the waiver in another request. The immunity enjoyed is by the United States, Sacoolas has no precedential legal entitlements like I suspect you are imagining because of similar immunities that exist in domestic law.
The U.S. State Department explains diplomatic immunity and waivers in fairly clear terms:
Always keep in mind that privileges and immunities are extended from one country to another in order to permit their respective representatives to perform their duties effectively; in a sense, it may be said the sending countries “own” these privileges and immunities. Therefore, while the individual enjoying such immunities may not waive them, the sending states can, and do.
The seeking of waiver of immunity is handled entirely via diplomatic channels.
Note specifically that the immunity waiver is entirely a diplomatic process, in the United States that means the executive branch basically has discretion to make these decisions. It is not part of our judicial system, the President or a high official in the State Department could choose to grant the waiver of immunity and Sacoolas would have no actual grounds for contesting the waiver legally. The onus would frankly be on you to demonstrate otherwise since you are asserting something that is not in line with the United States constitution.
Note that the court system is involved in extradition, but the extradition process first requires a diplomatic request, and since the person involved had immunity, the State Department declined the request. That means the domestic criminal courts have no authority to even hold an extradition hearing. If the waiver was granted, they could hold such a hearing. There are arguments Sacoolas could make in such hearing against extradition, as she does have a right to contest that court process, but it is highly unlikely the court would rule that she enjoyed “permanent immunity not subject to waiver”, when our system of laws clearly establishes that waiver is the discretion of the executive branch and is not an entitlement of an individual. A State Department official saying their decision not to grant waiver is “final” is not a legal judgment, but a political statement.
Note this state department regulation on waiving immunity here:
2 FAM 220 IMMUNITIES OF U.S. REPRESENTATIVES AND ESTABLISHMENTS ABROAD (state.gov)
Specifically: 2 FAM 221.5 Waiver of Immunity
The most important wording in that document is this:
(2) Except as provided in 2 FAM 221.5 subparagraph (3), the immunity of a Department employee will not normally be waived in private cases unless the employee consents or unless there is evidence that the waiver is essential to protecting the interests of innocent third parties, the U.S. Government, or both; and
That essentially is saying that if granting of waiver is essential to the interests of the U.S. government, it can be granted. And how are such interests determined? In this case, by the executive branch. If someone like President Biden (who has clear constitutional authority to conduct foreign policy of the United States), made a determination that granting waiver was essential to the interests of the United States, it would be granted, and Sacoolas would have basically no recourse. This is considered a “political question” by the courts, and they largely do not weigh in on them.
For reasons I have already stated, I do not believe Biden will waive immunity in this regard. In fact most powerful countries never waive immunity for their diplomats under any circumstances. They often will punish people for abusing immunity back home, though.