by Shuja Nawaz
The Davis affair became an instant diplomatic row between the US and Pakistan. The US position was that Davis was a diplomat. Pakistan did not agree. Interestingly, in his book, Davis states bluntly: ‘I was enlisted to protect State Department personnel. Did this make me a diplomat? Of course not.’ 16 (This may be purposeful misinformation to muddy the trail of his affiliation with the CIA or some other spy agency.) The paperwork supported Pakistan’s position. He was not on the foreign ministry’s list of accredited diplomatic staff, especially given his affiliation with the consulate in Lahore. The US embassy attributed that to bureaucratic mistakes at their end. This debate over Davis’s status created a mini-war inside Pakistan. The PPP Foreign Minister Shah Mehmood Qureshi insisted Pakistan stick to its position and try Davis.
The US decided to go to the mat to extricate Davis, even getting President Obama to call him ‘our diplomat’ 17 and invoking international conventions to provide cover for him.
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 our diplomats are in another country, then they are not subject to that country’s local prosecution,’ Obama said in a press conference today. ‘We expect Pakistan, that’s a signatory and recognizes Mr. Davis as a diplomat, to abide by the same convention . . . I’m not going to discuss the specific exchanges that we’ve had [with the Pakistani government], but we’ve been very firm about this being a priority. 18
Of course, Pakistan had never publicly recognized Davis as a diplomat. The president should have known that. The mood in the White House was not very pro-Pakistan at the time, among other things, because of growing evidence that Osama bin Laden was likely hiding in Abbottabad in northern Pakistan. Qureshi, who had had differences with his government, eventually resigned and joined the Opposition PTI. But Pakistan proceeded to allow the case to go to the Lahore High Court to determine Davis’s status before he could be tried for murder.
The US took a big gamble by getting the president to declare Davis a diplomat. But the Geneva Conventions do not support the Obama statement, as an independent UK analyst pointed out:
Full diplomatic immunity is enjoyed only by ‘diplomatic agents’. Those are defined at Article 1(e) of the Vienna Convention as ‘the head of the mission or a member of the diplomatic staff of the mission’. Helpfully the diplomatic staff are further defined in the preceding article as ‘having diplomatic rank’. Those ranks are an ascending series of concrete titles from third secretary through to ambassador or high commissioner. Davis did not have a diplomatic rank.
But there is a second category of ‘administrative and technical staff ’ of a mission. They enjoy a limited diplomatic immunity which, however, specifically excludes ‘acts performed outside the course of their duties’. (Vienna convention article 37/2.) Frantic off-the-record briefing by the state department reflected widely in the media indicates that the US case is that Davis was a member of technical staff covered by this provision.
But in that case the US has to explain in the course of precisely which diplomatic duties Davis needed to carry a Glock handgun, a headband-mounted flashlight and a pocket telescope. The Vienna convention lists the legitimate duties of an embassy, and none of them need that kind of equipment. 19
Further, Pakistani senior ex-military sources told this analyst that there was no note appointing Davis as embassy or consulate staff. ‘If the note exists, why have the Americans not produced it?’ he asked.
Pakistan’s fractured political power structure added to the muddle. The PPP government wanted to appease the Americans. The military, and especially the DG-ISI Gen. Pasha, were less wont to yield to US demands. Pasha made an initial attempt to get CIA Director entre nous to confirm Davis as a spy. Panetta, who was hawkish on the bin Laden matter, refused to confirm Davis as a CIA agent. Pasha was turned off by this behaviour and allowed the case to proceed in Lahore. Caught between these opposites, Amb. Munter tried to find the middle ground and seek a way out. Amb. Haqqani, who had had been educated at an Islamic school in his early years, claims he came up with the possibility of invoking Sharia law to allow payment of blood money to the victims’ families. Munter does not recall this idea originating from Washington. 20 In any case, Davis’s incarceration continued. The trial proceeded in fits and starts. Complicating the use of the Sharia gambit under the rubric of Diyat (Diyya in Arabic) was the US injunction against paying any money as ransom, which was how the US viewed this issue. That was the public position. Behind the scenes, Pasha, seeing an opportunity to resolve the lingering dispute, worked to oil the wheels of justice. Rumours swirled about who provided the funds. Some attributed the largesse to Malik Riaz, a celebrated and highly successful real estate developer with strong ties to the military and almost all political parties. But that was never confirmed publicly.
Regardless, nearly four months after Davis was jailed, a deal was struck. At one point in mid-February, Senator John Kerry, the chairman of the Senate Foreign Relations Committee, also arrived in Pakistan to help with the deal. Notably, drone strikes inside Pakistan were suspended during that period.
On 16 March, the court that was hearing the jurisdictional case before proceeding to trial of Davis for murder was instantly transformed into a Sharia court under Pakistan’s schizoid legal system. Davis was given a quick rundown of what was happening by US Consul Gen. Carmela Conroy, who had been his main interlocutor throughout the case. 21 Eighteen family members representing both victims and the wife of one of the Davis victims, who had reportedly committed suicide soon after her husband’s killing, filed in, some teary-eyed. Each signed a piece of paper that confirmed that they forgave Davis for the murders at Mozang Chowk. Each person received $130,000. Davis was a free man heading for a flight to Kabul.
At Lahore airport, a Cessna airplane with Amb. Munter on board waited. Also on board was a doctor from the consulate, whom Davis knew, and who would also examine him before he left the country. Munter had been receiving texts from Pasha during the court proceedings, though it is unclear if Pasha was actually in the courtroom, as some accounts, including Davis’s book, later stated. He could have been simply relaying someone else’s reports to Munter. Among others in that relatively small courtroom, there was no one who recalled seeing Pasha there. A senior military officer also confirmed to me that Pasha was not in the court that day. Regardless, Pasha and Munter played a role in Davis’s release. Interior Minister Rehman Malik also claimed credit via a governmental group that he convened.
Mr Malik claimed that the Pakistan Peoples Party (PPP) government and the military establishment had decided not to release Davis till he was acquitted by a court of law. ‘A high-level meeting had decided that neither would Davis be deported nor would he be granted diplomatic immunity, and that we would wait for the decision of the court in the matter and no action would be taken through any executive order,’ he said, adding that the name of Davis had been placed on the Exit Control List immediately.
He said that later in a meeting at the President House, the then Inter-Services Intelligence director general, Gen Shuja Pasha, had told the political leadership that the Americans wanted to exercise the right of Diyat (blood money) under Islamic law. ‘The matter was dealt with the cooperation of the Punjab government, the Ministry of Foreign Affairs and the Ministry of Interior,’ he said. 22
The judgment of the Lahore court gives the necessary though somewhat convoluted background to the case and how, in the absence of a case for murder under the regular penal code, the sharia law was applied and Davis was acquitted and released. 23
The provincial government of the PML-N tried to downplay its role, not wishing to assist the federal government, which it opposed tooth and nail. The disconnect between them and the central government, and the gap between the civil and military authorities, added to the delay in finding a solution to the Davis problem. On the American side, the CIA an
d Amb. Munter had had their own tiff over drone attacks. The latter wanted veto power over drone strikes. The CIA resisted and carried the day. The CIA also had the bin Laden matter up its sleeve and was hence unwilling to cede anything to Pasha and the ISI. As soon as Kerry had left Pakistan, the CIA resumed drone strikes. It was back to business as usual. Mistrust and grudging cooperation, all for the short term. 2011 continued to unleash new horrors on the benighted US–Pakistan relationship.
4
From Tora Bora to Pathan Gali
A major blow to the US–Pakistan relationship occurred when a heliborne force of SEAL Team Six of the US Navy invaded Pakistan on 2 May 2011 from their base in Afghanistan, killed Osama bin Laden in his secret lair in the Bilal Town neighbourhood of Abbottabad, and then took his body and whatever they could of his books, papers and computer systems back to Jalalabad. The bin Laden hideout on so-called Pathan Gali (or Pathan Street) was a short distance from the Pakistan Military Academy (PMA) in Kakul, the prestigious officer training school similar to West Point in the US and Sandhurst in the UK.
It was a long way from Tora Bora in 2001, in the Safed Koh (White Mountain) range straddling the Afghanistan and Pakistan border, the last time that reasonable intelligence had been established of bin Laden’s presence in any place. Bin Laden had fled to the network of caves dug into the depths of the Tora Bora after the US invasion of Afghanistan.
Flashback: The First US ‘Invasion’ of Pakistan
Soon after the terrorist attacks on the US mainland in September 2001, a small team of CIA agents who linked up with local commanders, mainly from the so-called Northern Alliance of Afghanistan, spearheaded the US invasion of Afghanistan. Roughly simultaneously, the US launched a naval expeditionary force designated Task Force 58 or TF58 to provide military muscle to the CIA’s smaller and more surgical operations. Under instructions from Vice Admiral Willie Moore, commander, naval forces of CENTCOM/Fifth Fleet, operating out of Bahrain, TF58 was tasked initially to conduct raids in southern Afghanistan. Later the task force was instructed to take and establish a forward operating base or FOB. This FOB shifted ‘back and forth from Camp Rhino (a 6,400-foot-long dirt strip some 400 miles inland) to Khandahar (sic) to Herat to Shindad, and back to Rhino’. 1
The commander of this naval expeditionary force and TF58 was fifty-one-year-old Brig. Gen. James Mattis, a hard-as-nails and highly decorated Marine commander who first had made a name for himself as a colonel in the invasion of Kuwait during the Persian Gulf War. He was the first Marine to command a naval expeditionary force. This expeditionary force established its base in Kandahar, originally under the name of Operation Swift Freedom, but later became part of Operation Enduring Freedom, the name given by Gen. Tommy Franks, the commander-in-chief of CENTCOM, to the invasion of Taliban-controlled Afghanistan as part of the global war on terrorism. Mattis played a key role in the invasion of Afghanistan and rebuilding an abandoned US relationship with Pakistan.
Afghanistan, a landlocked country, presented an obvious challenge to the amphibious assault forces, but Mattis brokered a secret agreement with the government (sic) of Pakistan to provide landing beaches and access to an airstrip. Task Force 58 was airlifted into Afghanistan in late November 2001 and was instrumental in the capture of Kandahār, a city regarded as the spiritual home of the Taliban. 2
His task force established itself at FOB Rhino that he refers to as Objective Rhino with an initial force cap of 100, which changed to 1,048, then 1,100, and reached a peak of 1,400. 3 This ‘invasion’ was aided and abetted by the Pakistan Army and largely kept secret from even the Pakistani foreign office. An interesting backstory to the selection of this site for FOB Rhino is provided by Amb. Rick Olson, later US ambassador in Pakistan and SRAP.
I arrived in Dubai as US Consul General on 11 August 2001. Exactly one month later, my world changed, as it did for many. Having anticipated that my tour would be dominated by Iran watching, instead it turned out to be all about the War on Terror.
The UAE had been one of three countries that recognized the Taliban regime in Afghanistan (the others were Pakistan and Saudi Arabia). Throughout 2001, this had been a growing source of tension in the bilateral relationship with the US (from 1999 to 2001 I was a political-military affairs officer at Embassy Abu Dhabi, and saw this tension growing firsthand).
As it happened, the crown prince of Dubai (and already de facto ruler), Mohammed bin Rashid Al Maktoum had [been in] the United States on 9/11 (in Kentucky to buy horses), so had actually seen the events in New York and Washington from an American perspective. . . .
As part of my informal ‘accreditation’ in Dubai, it was obligatory to hold a formal meet with MbR. Ordinarily, this involved going to Zabeel Palace, but in the first and as far as I know only break with this protocol, MbR came to meet me at the American Consulate General. I interpreted this to be an act signaling conciliation, and desire for a new relationship with the US. I recall that the meeting was on 17 September 2001, although I could be off by a few days. The Chargé d’Affaires at the US Embassy joined me, because we had just received from Washington the ‘You’re with us or against us’ demarche, and we both felt it was important to deliver this at the highest level. (Worth noting that in addition to being Crown Prince of Dubai, MbR was also UAE Defense Minister.) Although the demarche was sent out worldwide, clearly it applied most especially to three countries: Pakistan, Saudi Arabia and the UAE.
The Chargé. Gordy Olson (yes, same last name, no relation), delivered the stiff demarche, and we received assurances that the UAE and Dubai were indeed with us and supportive of the US War on Terror. Although this was about a month before we invaded Afghanistan and there was no preview in the language of the demarche, the clear implication was that the US would be taking decisive action against terrorism, and one could presume that would involve action in Afghanistan. Toward the end of the conversation MbR said that he owned a piece of land near Kandahar in southern Afghanistan that he used for hunting (presumably, hunting Houbara Bustards with Falcons). He had traveled there frequently and had built an airstrip that could accommodate a C-130 (Dubai Royal Flight had several). If the USG had any use for the strip, we should consider it ours. That is how it came to be that the Marines, under Brigadier General Mattis, landed at what became known as Camp Rhino a few weeks later.
As far as I know, this UAE contribution to the Afghan war effort has never been made public. When I was later US Ambassador to the UAE, I asked Secretary of State Clinton to thank MbR, which she did orally in her first meeting with him, but that may be the only recognition he ever received.
A final note: you will recall that in Steve Coll’s masterpiece, Ghost Wars, there is a reference to a botched attempt by the USG to kill Osama bin Ladin with a Tomahawk attack (ca 1998-99). The attack was aborted because of the presence of some Emirati royals in Afghanistan at the time. I have always wondered if the group include MbR. 4
Coll recalls in a message to me, the CIA as having identified the aircraft as Emirati military planes from imagery of their tail numbers. The Marines of TF58 came on ships under cover of darkness, landed at Pasni on the Mekran coast of Pakistan, established a beach-head, and then were transported to the Pasni airfield where they were kept out of sight under aircraft hangars or sheds during the daytime. At night, they were transported by road to Jacobabad, where an airfield had been handed over by Pakistan for the US’s Afghanistan operations. From Jacobabad, the Marines were flown to southern Afghanistan to establish their FOB at what was later to become Camp Rhino. A senior Pakistan Army corps commander confirmed to me that a regiment of infantry had been deployed to cordon off Pasni and ensure that no one in Pakistan, except the relevant military officers dealing with Mattis, found out about the Marine ‘invasion’. It appears that there was a higher-level agreement by the government (including the civilian foreign minister Abdul Sattar Khan) to cooperate with the United States and facilitate the use of Pakistan as a stopping place for US forces en route to Afghanistan. But the
Pakistani Foreign Office was not involved in crafting the details of the tactical and logistical arrangements. Those plans were principally implemented by Mattis and the DG Operations, Maj. Gen. Farooq Ahmed Khan, at the JCS headquarters, who worked with the GHQ Military Operations Directorate, the air force, and navy under the Director General Joint Staff and the Chairman Joint Chiefs of Staff Committee. Mattis was later to praise the cooperation of Gen. Khan and the Pakistani military for the success of the Afghan invasion.
According to the official history of TF58, 5
The establishment of Intermediate Support Bases (ISBs) in Pakistan was imperative to the success of operations in Afghanistan. Numerous sites were initially assessed for their suitability to support TF 58 operations and three sites—Pasni, Shamsi, and Jacobabad—were ultimately selected. Pakistani military support for TF 58 operations was outstanding. In terms of commitment and professionalism, Major General Farooq and his associates never let the Marines down. Coordination for the use of these sites was an ongoing process, requiring close ties with the CENTCOM liaison cell at the American Embassy in Islamabad, Pakistan. Lt. Colonel Asad ‘Genghis’ Khan, 6 a Marine liaison officer assigned to Brigadier General Ron Sams, USAF, with his CENTCOM liaison cell provided a critical interface between TF 58 and the Pakistani military for the use of the ISBs in Pakistan. The Pakistani Joint Headquarters Staff trusted Genghis and years of disengagement and distrust were replaced by a warm, supportive, professional and personal relationship. Pakistan’s commitment to this effort consisted of over 35,000 Army troops committed to base security, activation of two Navy bases, 7,000 Air Force troops and squadrons and the deployment of frontier battalions along the Afghan–Pakistan border. The Pakistani Government’s contribution to combating terrorism was visibly demonstrated throughout OEF [Operation Enduring Freedom].
