Spy Games

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.

Tags: asif ali zardari, barack obama, blackwater, cia, drones, general kayani, glock, hillary clinton, isi, pakistan, private contractors, raymond davis, taliban, xe services, zardari

    • Scott Horton
    • Scott Horton is a contributing editor at Harper’s magazine, where he covers legal and national security issues. As a practicing attorney, Horton has focused on investment in emerging markets. He is also a life-long human rights advocate and serves as a director of the Moscow-based Andrei Sakharov F...

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