Spy Games

UPDATE, MARCH 16: At a hearing of the Lahore Sessions Court convened for security reasons at the Kot Lakhpat Jail today, CIA contractor Raymond A. Davis was arraigned on double homicide charges and then quickly acquitted and released. Attorneys for Davis and the victims’ families announced that they had entered into an agreement in which Davis offered compensation to the families — $1.4 million total — and they forgave him. Davis was then released into the custody of U.S. consular officials, who accompanied him at the hearing. According to the U.S. Consulate General in Lahore, he is leaving for London on a special flight later in the day.

Punjab’s law minister, Rana Sanaullah, denied that his government had played any role in brokering the arrangement. Lawyers associated with the matter suggested that the provincial government had orchestrated the settlement, some arguing to the Pakistani press that the families had been pressured by the government to accept the offer. In any event, the Pakistani government’s eagerness to be done with the case was signaled by another factor: Notwithstanding the dismissal of the homicide charges as a result of the reconciliation with the victims’ families, Davis could still have been prosecuted on a charge of unlawful possession of a firearm, a charge which was entirely in the control of the government. And that charge was dropped to allow Davis to go free.

According to U.S. ambassador Cameron Munter, Davis’s troubles have not ended: The U.S. Justice Department has opened a criminal investigation into the events of Jan. 27, though whether U.S. courts have jurisdiction over CIA contractors such as Davis operating in the field is unclear.

It’s also unknown what accommodations have been reached between the CIA and the Pakistani Directorate for Inter-Services Intelligence (ISI) over on-going intelligence operations in Pakistan, which, as FP reported in this story last week, were the crucial backdrop to the Davis case. However, late last week an important Pakistani general stated that the drone campaign had led to important successes in the Waziristan region. This statement was widely taken as a signal that the talks between the CIA and ISI were moving in a positive direction.

If you wanted to identify the low point of U.S.-Pakistan relations, a good place to start would be Jan. 27 of this year. In heavy midday traffic, an American named Raymond A. Davis stopped his white Honda Civic at a light in Lahore’s Qurtaba Chowk neighborhood, drew a Glock pistol, and fired 10 rounds at two young Pakistani men, Faizan Haider and Faheem Shamshad, killing both of them. Davis then attempted to flee the scene but was apprehended by regional police when a car in the road ahead of him stalled.

Those facts are the sum total of what U.S. and Pakistani officials have been able to agree on in the six weeks since the incident occurred and Davis, a muscular young former Special Forces officer who, it has since emerged, was working as a CIA contractor, became the center of a diplomatic crisis. The other details have been spun so aggressively by so many different parties that you could assemble a subcontinental Rashomon out of them.

On March 8, the Lahore Session Court held a hearing inside the Kot Lakhpat Jail, where Davis is being held, and presented the American with documents charging him with two counts of homicide. (Davis, accompanied by a U.S. consul and a team of American and Pakistani lawyers, declined to sign the charging documents and has yet to enter a plea. The formal arraignment is slated for March 16.)

But in truth, what the court decides in public about Davis’s fate is far less important than what the Pakistani government decides behind closed doors about one question: Is Davis’s claim of diplomatic immunity valid? And that, in turn, depends on a high-stakes, cat-and-mouse game between the Pakistani and U.S. intelligence communities. Dealings between the CIA and its Pakistani counterpart, the Directorate for Inter-Services Intelligence (ISI), have grown increasingly confrontational since Davis’s arrest. Davis’s fate now depends on whether the two ostensibly allied but mutually distrustful agencies can establish a new modus vivendi — and suppress a long-smoldering quarrel that has turned lethal.

When news of Davis’s arrest first came to light, the U.S. media gave lead play to the American’s own account of the events. In this telling, a clean-cut former soldier, coming from the U.S. Consulate where he worked, had stopped to withdraw cash from an ATM. At a traffic stop a few minutes later he was accosted by two young men on a motorcycle who threatened to rob him, one brandishing a firearm. Davis says he shot them through the windshield of his Civic in an act of self-defense and then, still fearing for his safety, departed the scene.

Pakistani media accounts, conversely, have focused on the myriad details of Davis’s story that cannot be reconciled either with the observations of witnesses on the scene or the reports of police investigators. They dwell on the report that each victim bore three bullet wounds, all of which entered from the back — meaning that neither victim could have been facing Davis or brandishing a firearm when he was shot. They have also fixated in detail on the formidable array of hardware Davis had in his car at the time of his arrest: a Glock 9mm handgun, a Beretta, sophisticated GPS equipment, an infrared light, a telescope, cell phones, a satellite phone, bullets (which, Pakistani police later stated were of a special armor-piercing variety outlawed in many countries), M-16 shells, military knives, and a camera with photographs of madrasas and other sites around Lahore. There were other eyebrow-raising details, too: Davis was reportedly carrying a number of ATM and military ID cards and several IDs identifying him with U.S. consulates, using different names, plus theatrical makeup commonly used for disguises.

Pakistani police reports also quote witnesses stating that after he shot the two victims through the windshield, Davis emerged from the car and coldly and methodically shot their bodies again — and then photographed the corpses before using a cell phone to call for help in getting away from the scene. An American extraction team coming to Davis’s rescue drove at high speed the wrong way down a one-way street, striking and killing a Pakistani motorcyclist. Ten days later, the wife of one of the victims committed suicide by swallowing rat poison, after telling witnesses that she believed his murderer would never be held to account.

Things got even stranger when the U.S. State Department got involved. The day of the incident, spokesman Philip J. Crowley confirmed that the apprehended American was “an employee at the U.S. Consulate in Lahore,” but wouldn’t address whether he was protected by diplomatic immunity — and even denied pointedly that the man’s name was actually Raymond Davis. Two weeks later, the U.S. Embassy in Islamabad acknowledged his name in a news release, but in a series of subsequent releases in mid-February began referring to him as a nameless “American diplomat” associated with the embassy. (The difference is significant: Consular employees wouldn’t necessarily be beyond the reach of the law in a homicide case, but diplomatic officials would.)

It hasn’t just been low-level embassy functionaries and spokesmen making these claims. At the Munich Security Conference on Feb. 5, Secretary of State Hillary Clinton cornered Pakistan’s Army chief of staff, Gen. Ashfaq Parvez Kayani, and insisted on Davis’s release, characterizing him as a “diplomat.” Pakistani President Asif Ali Zardari was told by the Obama administration that his hoped-for state visit to Washington would be canceled unless Davis were freed. And on Feb. 15, U.S. President Barack Obama himself became involved in the issue, insisting that Davis be treated as a diplomat. Senate Foreign Relations Committee Chairman John Kerry did the same several days later.

The question of whether an individual is a diplomat and entitled to diplomatic protection normally admits of little ambiguity: The sending state designates a person as a diplomat and that designation is accepted by the host state. In this case, the State Department insists that it reported Davis to the Pakistani Foreign Ministry before the Jan. 27 incident. But the Pakistanis deny this. The Pakistani Foreign Ministry says that the first attempt by the Americans to register Davis as a diplomat occurred one day after the incident — and the Americans haven’t yet produced any evidence that the Pakistanis had registered or accepted Davis. The matter now rests with the Lahore High Court, which has so far been unconvinced by Davis’s lawyers’ claims. That decision is on appeal and will be addressed in court on March 14. (UPDATE: On March 14, the court dismissed the petition filed by Davis seeking recognition of diplomatic status, directing that the question be heard and resolved by the trial court if, as expected, he is indicted and arraigned on Wednesday.) But it should be noted that the court takes a very mechanical approach to the question: It is guided by what the Pakistani Foreign Ministry tells the court happened. So it would take an about-face by the Foreign Ministry on the underlying facts to set Davis free.

Here, then, is the crux of the matter: For all the State Department’s bluster, its claim of immunity in Davis’s case is embarrassingly weak. The United States has been fervently hoping that the Pakistani government, as a friendly state — and recipient of billions in U.S. aid — will look the other way and accept Washington’s claim without evidence. And in fact, friendly states routinely do take an assertion of diplomatic status at face value and don’t quibble over the details.

The problem is that lately Washington and Islamabad have been less than friendly. “The diplomatic immunity struggle over Davis is a smokescreen for other issues,” one senior AfPak analyst told me. “It actually goes to the heart of a dispute over national security issues of the utmost importance to both Pakistan and the United States.”

More than a month after Davis’s arrest, sources in Washington began to acknowledge what had been reported in the Pakistani media from the outset: Davis was a contractor for the CIA. In short time he was identified as its acting station chief. Shortly thereafter, Pakistani intelligence sources claimed that the motorcyclists Davis had killed, who had previously been portrayed by Davis’s defenders as street thugs, had in fact been known to Davis — as low-level operatives of the ISI, who had been assigned to tail him. Davis had crossed “a red line,” Pakistani officials told ABC News.

But what was that “red line”? Neither the ISI nor the CIA is eager to air their disagreements in public. But in the last three months, the friction between them has grown so intense that the flashpoints have become obvious. Some disputes have to do with specific personnel; others have to do with broader questions of policy and specific operations. But the essence is clear: The ISI believes that the CIA can only be given free range to operate on Pakistani soil if it treats the ISI as an equal, sharing with the ISI information about its personnel, the operations on which it is engaged, and the information it secures from those operations. And until the CIA makes meaningful concessions on the ISI’s demands, the ISI is prepared to clamp down on the CIA. Indeed, at present no one appreciates that point more intensely than Raymond Davis.

What exactly are the points of friction?

Drone wars: The crown jewel of intelligence community operations in the Afghanistan-Pakistan borderland is an extensive program of surveillance and warfare using drones. The operations are led by the Joint Special Operations Command on the Afghanistan side of the frontier and by the CIA on the Pakistani side, but the exact boundaries are unclear, both physically and with respect to the scope of operations, and a number of contractors appear to have shared duties on both sides. Davis may have been one of those contractors: Pakistani investigators have told reporters that the GPS device secured from Davis on Jan. 27 had been used to direct drone strikes in North Waziristan. Newsweek reported that the connection between the Davis case and the drone war was so sensitive that the Americans apparently decided to suspend drone attacks for two weeks following his arrest.

The ISI is not per se opposed to the use of drones; indeed it is intrigued by and covetous of the technology. At a March 9 news conference, a prominent Pakistani military official acknowledged — unusually — their efficacy in North Waziristan. But Pakistani spooks bristle over the limited role they play in targeting decisions and their inability to receive advance or even contemporaneous information about drone operations. Moreover, a senior ISI source pressed a further point to me: Drones are used for surveillance as well as strikes — and ISI officers believe that they are increasingly being watched.

Private contractors: The CIA operation in Pakistan relies heavily on private security contractors from outfits like Xe Services (formerly known as Blackwater USA) for intelligence gathering and support operations from Karachi to Peshawar, a phenomenon personified by Davis — who went to work for Blackwater/Xe and later organized his own security contracting outfit called Hyperion Protective Consultants. These operations have drawn a firestorm of criticism from political leaders in Pakistan, and from the ISI. “The CIA uses a lot of these contractors, from Blackwater or whatever,” a retired ISI general vented to me last fall. “They have disproportionately large muscles and small brains, and draw weapons and shoot people for little or no reason.” In his view, the reliance on contractors was consonant with the decay of professional standards and military decorum, much valued by the ISI. “It’s impossible to work with these people,” he said. After the Davis incident, the ISI is reported by the New York Times to have pressed the CIA for a complete list identifying and locating all security contractors working for the CIA in country.

Nuclear programs: Nuclear weapons programs are understandably a priority matter for CIA surveillance worldwide. As the home of the “Islamic bomb” and arguably as the least stable nuclear-armed country on Earth, Pakistan gets special attention. According to Brookings Institution analyst Bruce Riedel, Pakistan has the “fastest growing [nuclear] arsenal in the world.” The CIA is keen to monitor Pakistani programs, the Pakistani role in nuclear proliferation, and the potential development of Pakistan’s long-range Babur cruise missile as a delivery system. The ISI is bent on guarding Pakistani secrets from prying American eyes, and Pakistani media is filled with stories suggesting American plans to steal or incapacitate the country’s nuclear weapons systems. A clash on these issues is unavoidable and intractable.

Terrorism: Surveying and monitoring terrorist groups that operate in Pakistan is a major objective of U.S. intelligence operations there. The ISI has a long-standing and deep relationship with Taliban groups that didn’t end after 9/11, as well as close connections to Lashkar-e-Taiba, a group tightly linked to the Nov. 26, 2008, attacks on Mumbai. U.S. scrutiny of relations between the ISI and these groups and others like them is a sensitive subject on the Pakistani side. Much of the information produced by these operations — which often finds its way into the U.S. media — is likely embarrassing to the ISI. (Pakistani investigators, meanwhile, have accused Davis of having ties to operatives of two al Qaeda-linked organizations in Pakistan, Tehrik-i-Taliban Pakistan and Lashkar-e-Jhangvi.)

Davis’s capture and the battery of communications devices he had on him may have been damaging to CIA ground operations in Pakistan. Drawing on information seized from Davis, Pakistani intelligence has been busily “rolling up” CIA cells and operatives across the country. The Express Tribune reports that 30 American intelligence operatives were forced to suspend activities, while another 12 quickly departed the country in the days after Davis’s arrest. Dawn reports that as of late last month, 45 Pakistanis had been apprehended for having “constant contact” with Davis, apparently on suspicion of espionage. One of Davis’s jailers was suspended and placed under investigation after he was caught passing Davis some thumb drives.

At present, U.S. and Pakistani officials are engaged in difficult multilevel discussions in an effort to re-establish a working relationship between the CIA and the ISI. Citing “an official privy to the ongoing negotiations,” Dawn reports that Davis’s fate “hinge[s] to a large extent on the outcome of this CIA-ISI dialogue,” and that “The ISI believes that it had been betrayed by the CIA.”

“One of Pakistan’s demands at the talks between military and intelligence officials,” the article continues, “is a categorical assurance from the American spy agency for ending its undeclared activities and being transparent in its dealings with the ISI.”

Ending “undeclared activities” appears to mean stopping surveillance operations that target the ISI. “Being transparent” most likely means identifying contractors and operatives, sharing information derived from intelligence-gathering operations, and Pakistani participation in targeting decisions relating to the drone wars. If this is the case, ISI leaders are intent on holding Davis and pressing the criminal case forward unless a final accommodation along these lines can be worked out. But such a deal is a tall order from the CIA’s perspective because the agency does not believe it can trust ISI with any of this information without compromising the security and efficacy of essential operations.

Nevertheless, there are several paths that could lead to Davis being turned back over to U.S. custody. One would be providing full compensation to the families of the three deceased men on Davis’s behalf. Under Pakistani law, if the perpetrator of injury achieves reconciliation with the survivors of the victim, this is a factor that prosecutors may legitimately take into account in deciding whether to bring or continue to prosecute criminal charges. Given that Davis was, as the United States contends, acting within the scope of his duties for the government when he shot and killed Haider and Shamshad, the United States should make the payment on Davis’s behalf. A substantial cash settlement would probably go a long way toward relieving pressure for a trial, and it could give prosecutors an opening to reconsider their decision to bring charges. U.S. diplomats may be concerned about the appearance that the United States is “buying” Davis’s freedom with a big cash payment or that the payment is insultingly small — public relations problems that have arisen in the past — but that probably can’t be avoided.

A prisoner exchange would also be an option — and in Pakistan, there has been an aggressive push for it, embraced by one of the victim’s families. The proposal is that Davis be surrendered in exchange for Aafia Siddiqui, a Pakistani woman who was tried and convicted in a federal court in Manhattan last year on charges that she assaulted with intent to kill U.S. officers and employees in a strange incident that occurred in Kandahar in July 2008. Siddiqui, an MIT-trained neuroscientist turned radical Islamist from Karachi, was convicted and sentenced to 86 years in a Manhattan federal court last September. While federal prosecutors viewed the Siddiqui trial as a model that demonstrates how the federal criminal justice system can handle difficult terrorism cases, public opinion in Pakistan was outraged over her treatment from the outset. “The Pakistanis have raised it,” an unnamed U.S. official told ABC News. “We are not going to pursue it.” But the proposal may offer a sensible way of defusing the current conflict, and it demands more serious study.

A prisoner exchange does not necessarily mean freedom for Davis or Siddiqui. The governments could agree that the prisoner they receive in exchange will be investigated and, if appropriate, charged and tried with crimes. Large numbers of spy exchanges have been carried out between the United States and other governments in the past, so the procedures are well established. The unusual twist in this case is that the exchange would be between ostensible allies rather than enemies.

Finally, Pakistan could simply pardon Davis. Pakistan’s Constitution vests President Zardari with the power to do this, and Zardari is reported to be eager to resolve the Davis matter. However, it is unclear whether this power can be exercised pre-emptively. In theory at least, Zardari would have to wait until Davis is tried, convicted, sentenced, and has exhausted appeals before he can act. And that process could consume years.

An incident like the Raymond Davis affair was probably an inevitable function of the evolving relationship between the United States and Pakistan, an alliance that was fraught with problems even in the best of times. The country remains an unavoidable U.S. partner in the war in Afghanistan. But beginning in George W. Bush’s second term, the United States began to adjust its posture with respect to Pakistan, pulling away from a tight relationship with military elites and instead trying to the build a new relationship focused on the country’s middle class and professionals, groups that might sustain a stable democratic government. On each of these points, the traditional military elite that sits atop the ISI, which previously benefited enormously from U.S. largesse, comes out on the short end.

The struggle over immunity for Raymond Davis is an interesting test of principles of diplomatic law for legal experts. But make no mistake: This is ultimately a proxy struggle in which the old Pakistan is reasserting itself, pushing for recognition and a seat at the table. The game that remains to be played is delicate and complex, and a great deal hangs in the balance.