THE LAW FIRM OF

RAVIBATRA

THE BATRA BUILDING

RAVI@RAVIBATRALAW@AOL.COM FAX: 212-545-0967

142 LEXINGTON AVE.

NEW YORK, NEW YORK

10016
June 1,2011

212-545-1993 Via FedEx 87050123 5693 Hon. Hillary Rodham Clinton Secretary of State United States Department of State 2201 C Street NW, 7th Floor Washington, DC 20520
Re: Honor student Krittika Biswas, and the Vienna Convention on Consular Relations of 1963 Dear and respected Madam Secretary Clinton, I. Introduction I write in the capacity of counsel to an honest to goodness Honor Student, Krittika Biswas, regarding a matter of great importance to the undersigned so that I may vindicate her rights to the fullest, as well as collaterally protect every American, who travels abroad, and family members of our American consuls serving on foreign soil. However, before going further, I recall with great warmth and respect your service as our First Lady, and then as our own Senator from the great state of New York, taking the spot previously held by the late great American statesman, Pat Moynihan, and our numerous warm and candid interactions. Indeed, your service as First Lady included a visit 16 years ago to Beijing, the 15th year anniversary of which was celebrated at the UN on March 12, 2010, when my wife, Ranju, and I witnessed your history recalling speech with inter alia, former Secretary of State Madeline Albright and our dear friend, Rep. Carolyn Maloney in attendance. As you already know, now there is a "UN Women;" a fitting tribute to your service as First Lady to uplift humanity itself. I also note, that I am privileged to serve as Chair, of the National Advisory Council on South Asian Affairs, a foreign policy think tank serving the best interests of the United States, while applying Thomas Jefferson's prescription of "eternal vigilance," as the price of liberty. II. Basic Facts of Krittika's Illegal Arrest, as it Was Without Probable Cause, and In Violation of the Vienna Convention On February 8,2011, in Queens New York, without probable cause and in violation of US and NY laws, Krittika was arrested and detained for sending criminal emails threatening sexual Page 1 of 8

violence to a teacher and her 7 yr old child. She asserted her innocence, her Vienna Convention rights of access to her Consul-father as well as to the Indian Consulate, as permitted by Art. 36 of the Vienna Convention, as well as asserting "diplomatic immunity," as she carries a diplomatic passport and is covered by Art. 53(2) and Art 41, which grants her immunity from being arrested or detained absent a judge-issued arrest-warrant, and that too only for a "grave crime," a felony. She was handcuffed "tightly, with pain and redness" to motivate her to falsely confess, which she refused to do. She was not allowed access to the bathroom for hours. She was under arrest/detention for over 28 hours. On February 9th, the day after the arrest, India's CG, Amb. Prabhu Dayal, consistent with Art 36 of the Vienna Convention, contacted the undersigned, to represent the l8yr old girl and appear for her in Queens Criminal Court. I met with District Attorney Richard Brown, who just celebrated 50 years of distinguished public service, including, as counsel to Governor Hugh Carey, 16 years on the Supreme Court bench, 10 of which on the Appellate Division. I gave DA Brown a copy of India's February 9th Note Verbale, signed by Consul General Dayal and addressed to US Dept of State, a legal document issued by one country to another and which asserted diplomatic immunity from arrest and detention. I informed DA Brown of Krittika's "actual innocence," as she was in a mall shopping at the time the criminal emails were sent and this case was going to become a "headache." DA Brown, in the finest tradition of exemplary American jurisprudence and soundest of prosecutorial discretion, administratively dismissed the criminal charges, and "sealed" the file, so that her "arrest" was expunged. On February 10th, the next day, despite knowing of the DA's charges-dismissal, John Bowne HS principal Kwait again filed false charges to suspend Krittika and send her to "reform" school. From February 10thto March 11th, a Friday, the day of the School Hearing, we marshaled the evidence in a full-fledged manner so as to prove her "actual innocence," including, obtaining a software engineer forensic expert, who issued an affidavit-report showing that Krittika's Internet Service Provider (ISP) was "Road Runner," while the criminal emails were sent via the "Earthlink" ISP. On the day of the Hearing, I gave our "key," the forensic expert's affidavitreport, to the school so they too could now solve the puzzle of "whodunit." The very next Monday, March 14th,the school, with a simple call to Earthlink, was able to identify the true culprit: Shang Ming, a student who had failed the Trigonometry Regents, and hence was booted out of the Honors calculus class by Kim Ross. On March 15th,Ming, confessed, apologized, and he was suspended, but not charged or arrested by the school officials, who had acted with constitutional malice towards Krittika. While I agree with the decision not to arrest and criminally charge Ming, as we as a society should be loathe to give our young people criminal records, that stands in stark contrast to the manner that Krittika, an honor student and "actually innocent" was treated. This is illegal discrimination beyond dispute. Enclosed, are the Filed Notice of Claim, and the 5/24/11 Statement I issued, both of which are incorporated herein by reference. III. Notice of Claim "Filed," a Required Precursor to a Lawsuit Against a Municipality We are honored to have filed, on May 6,2011, a Notice of Claim on Krittika's behalf against the greatest city and the diplomatic capital in the world, the City of New York, and our heroic Police Commissioner Ray Kelly, the new and most capable NYC Chancellor of Education, Dennis Walcott, principal Howard Kwait and teacher Jamie Kim Ross and several other City employees. The said Claim included quotations of the relevant articles of Vienna Convention, Articles 36, Page 2 of 8

which I now fondly call, "the International Miranda Rights," along with Articles 40, 41, and 53. Said Claim made clear that Krittika's rights under the Vienna Convention were denied, even though the United States is not only a signatory to said Convention, but had a significant role in drafting same and then advocating for other nations to become signatories, thereby helping to create a "floor" of international rights for all of our "fellow citizens of the world." A term used with great import in his opening sentence by then candidate Barack Obama in his July 24, 2008 Speech given at Siegessaule, the Victory Column, in Berlin, Germany; a moment when history stood still so as to record what I and my family watched with awe on German soil, as Berliners, young and old, enthusiastically climbed trees and light poles, and applauded an AfricanAmerican who had the audacity to hope of leading America, the greatest nation in history, and absolve us all from our Original or Founding stain of slavery.

IV. State Department's Mark Toner's Stated-Understanding

of the Vienna Convention

So, imagine my shock at learning that Mark Stone, a State Department Spokesman on May 25, 2011, during a daily State Department Briefing, state "his understanding" to be that the "plain language" of the Convention's Article 53(2) doesn't mean what it says and improperly excluded family members from being immune from an arrest or detention unless it was judge-authorized and for a "gave crime," a felony. It is as if "black" had become "white," and ''white'' had become "black." I suggest that that is not the stuff of mere "interpretations," but rather of "renunciation" or "abdication." The injury of such "utterance," is not only to Krittika's "filed" Claim, but to put every American who travels abroad at some greater risk, be they carrying an American passport or an American Diplomatic passport, as reciprocity is the mother of international rights.

V. Vienna Convention on Consular Relations of 1963 - 2 Categories Violated

There were two different categories of violations inflicted upon Krittika. One set of rights is for all citizens of a "signatory country," irrespective of whether the passport is ordinary or diplomatic; the so-called basis for a "fellow citizen of the world," or "the International Miranda rights." The second category violated is of "facilities, privileges and immunities." For ease of reference, I reproduce herein the relevant articles of the predicate Vienna Convention on Consular Relations of 1963, to wit:

A. Category 1-Violated "Article 36- Communication and Contact with Nationals of the Sending State 1.With a view to facilitating the exercise of consular functions relating to nationals of the
sending State: (a) consular officers shall befree to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) ifhe so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; ( c) consular officers shall have the right to visit a national of the sending State Page 3 of 8

who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement, Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention ifhe expressly opposes such action. 2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, .that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended." (Emphasis added in italics) In Krittika's case, the entirety of Krittika's rights as well as those of the Consulate General of India were violated. I, of course, do not represent the Government of India, but Krittika Biswas. I take special notice of paragraph 2 of Art. 36, which forbids any law or regulation that does not give "full effect" to the Vienna Convention. This is an important principle, that forbids an exception from "swallowing the rule." B. Category 2violated and Misinterpreted by Department of State "SECTION II---FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO CAREER CONSULAR OFFICERS AND OTHER MEMBERS OF A CONSULAR POST" "Article 40-Protection of consular officers The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity." "Article 41 -Personal inviolability of consular officers 1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority .... " "Article 53 -Beginning and end of consular privileges and immunities 1. Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the consular post. ... 2. Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1 of this article or from the date of their entry into the territory of the receiving State or from the date of their becoming a member of such family or private staff, whichever is the latest." (Emphasis added by underline)

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VI. Argument: the Interpretation of Mr. Stone on March 25, 2011 must Be Recalled and Vacated, and in its Place and Stead, a New Interpretation Must be Issued Which Is Legal A. "Fellow Citizen" Article 36 Ri2hts violated In Krittika's case, her rights pursuant to Art 36, reserved for all humanity from signatory countries, be they carrying regular citizen-passports or diplomatic-passports, were violated, to wit: mandatory access to her country of citizenship, India's Consulate General in New York, along with the unrestricted mandatory rights of communication and visitation, including, the purpose of arranging legal representation. Just on Monday, Memorial Day 2011, May 30th, I happened to watch Richard Gere's character, a Harvard-lawyer and businessman, knowingly demanding and getting his Article 36 rights in the movie, Red Corner, in China. B. Diplomatic Privileges and Immunities reserved for family members of a consul's household, pursuant to Articles 41 and 53(2) violated: Freedom from arrest or detention, absent a judge-issued arrest-warrant for "grave crimes" In addition, Krittika's rights under Articles 41 and 53(2) were violated, as she is a "member of the family of a member of the consular post forming part of his household," and as such "shall receive the privileges and immunities ...in accordance with paragraph 1 of this article ..." Paragraph 1 of this Article 53 provides: Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State ..." To understand this immunity-grant to family members, we then must look to Article 41 to discover what a consul's privileges and immunities are. Article 41 says "1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority .... " Accordingly, Krittika, like her vice consul father, "shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority ..." In Krittika's case there was no judge-issued arrest warrant, let alone in a "grave crime." We know that when the actual perpetrator was found by the school after I gave them the "key," our forensic expert's affidavit-report showing how to decipher an email and that Krittika's ISP was "Road Runner" and the criminal emails came from an ISP of "Earthlink," the school confronted him, he confessed to sending same, and was not arrested or detained, but merely suspended. Hence, conclusively, not a "grave crime." VII. Request for an Immediate Review, and Issuance of a New Interpretation That Enables, Not Destroys, the Rights, Privileges and Immunities Granted by the Vienna Convention I therefore respectfully request that you seek an immediate de novo legal review, and if so advised, issue a new interpretation that gives "full faith and credit" to the "plain language" of the Vienna Convention, as well as the "enabling" mandate contained in Article 36(2) that forbids the Mark Stone's "uttered" interpretation as it "destroys" the rights intended to be enjoyed by foreign citizens or consul's family member in the "receiving state," the United States herein, to wit: "2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended." " Only with such a revised and lawful interpretation, will American citizens enjoy a full measure of Page 5 of 8

safety by being able to obtain our rights, privileges and immunities on foreign soil. We need go no further than to recall the use of these very rights to get Raymond Davis out of Pakistan, a few short months before justice was bravely served by our heroic navy SEALs to Bin Laden on Law Day, May 1, 2011. At this juncture, I must note that Pakistan has loyally supported America and our strategic interests throughout the duration of the Cold War and served as a critical doorway for our nation, during the Nixon-Kissinger years, as we made historic overtures to China as a then needed counter-weight to the then Soviet Republic. That service is a debt to our nation's national security and strategic geopolitical interests, which we have resoundingly and honorably paid for, albeit, now things seems in need ofrecalibration. I have one final reason to request an emergency review. Under New York law, when a claim is made against a municipality, the claimant must wait six (6) months for the municipality to "adjust" or settle the claim, and ifnot so adjusted, then the claimant is free to go to court. If the present interpretation is not recalled and reissued to comply with the "plain meaning" of the Vienna Convention, I will be compelled to file suit in federal district court, as only a federal court has jurisdiction over federal law and federal officers, including, the general counsel to the Department of State, so the interpretation can be judicially ruled upon. So, not only to give Krittika her full measure of rights, privileges and immunities under American law, but to protect Americans and family members of our American diplomats serving on foreign soil, I urge you to act and avoid possible retaliatory-reciprocity from foreign nations and to free me from fiduciary-compulsion. Finally, I note that this letter-request is Exhibit A to prove that America is a nation of laws, with a vibrant and vital separation of powers regime that seeks to honor Lincoln's covenant with every American: a Government of the people, by the people and for the people. (Indeed, the recent events in north Africa, starting with an insult to a Tunisian Arab, has caused a people's tsunami that is rolling across that continent and into the middle east on the wings of social media, such as Facebook and Twitter, which can disintermediate governments that don't honor Lincoln's covenant, for now people self-identify and self-congregate in cyberspace based upon their issues of interest, such that territorial sovereignty can in futuro be put in question itself.) This process that I engage in, then, is why we are the envy of the world, and why American Freedom is the zenith of human freedom in all of human history. Imagine an ordinary citizen "knocking" on the door of the Secretary of State. How very American!

Encl: Filed Notice of Claim, and Ravi

atra's 5/24/11 State" ent issued at NY City Hall Steps

~

P.S. Symbols Matter. I am mindful of Se retary ofHomela~d Security, Hon. Janet Napolitano's statement issued in New Delhi last week of being "very sympathetic" to Krittika while there for joint homeland security protocols. Her expression is in the finest tradition of American compassion, and validates the singular American trait, thirst for merit-based justice. Indeed, I Page 6 of 8

was concerned that everyday people in India, over and above the private sentiments of the Indian government, might view Krittika's ordeal as their collective national dishonor, and so I suggested, during my Statement issued on City Hall Steps on May 24th, copy enclosed, that Mayor Mike Bloomberg might wish to give the Key to our fair City to Krittika so as to replace the unbelievable insult with some needed honor and respect for her, as well as in deference to the warm and daily-stronger relationship between our nation and India, and a "welcome mat" for all diplomats generally in New York. Indeed, on rainy morning of November 24, 2009, I and my wife witnessed President Obama in the East Room of the White House welcome Prime Minister Manmohan Singh, as America's First State Guest, a singular honor, and PM Singh responded magnanimously by closing his remarks with, "God bless America," the warmest of tributes paid by one sovereign nation to another. Perhaps, you may wish to look into some other symbol of warmth and honor to replace the insult and injury; maybe, we can have an audience with the exalted, and our favorite, historymaking Secretary of State. Copy by mail: Hon. Barack H. Obama President of the United States of America The White House 1600 Pennsylvania Avenue NW Washington, DC 20500 Hon. John A. Boehner Speaker of the House Office of the Speaker H-232, The Capitol Washington, DC 20515 Hon. Nancy Pelosi Democratic Leader United States House of Representatives 235 Cannon House Office Building Washington, DC 20515 Phone: (202) 225-4965; Fax: 202-225-8259 Hon. Harry Reid Majority Leader United States Senate 522 Hart Senate Office Building Washington, DC 20510 Hon. Mitch McConnell Republican Leader United States Senate 317 Russell Senate Office Building Washington, DC 20510 Page 7 of 8

Hon. Charles E. Schumer Senior United States Senator for New York 322 Hart Senate Office Building Washington D.C. 20510 Hon. Kirsten E. Gillibrand United States Senator for New York 478 Russell Senate Office Building Washington, DC 20510 Hon. Gary L. Ackerman, Ranker, House Sub-Committee Middle East and South Asian United States House of Representatives 2111 Rayburn HOB Washington, DC 20515

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