Why Are We Giving Foreign Hackers Diplomatic Immunity?

In 2017, as the conflict between Saudi Arabia and Qatar was heating up, a Moroccan named Jamal Benomar was employed by the Qatari government as part of a broad effort by the tiny, Iran- and Islamist-supporting country to spy on that nation’s friends and enemies. Some of this spying entailed hacking email accounts, so that Qatar’s enemies could be harmed through leaks of sensitive information to the press. Other efforts involved more traditional espionage.

Scandalously, the U.S. State Department just found that Benomar was entitled to diplomatic immunity based on a request from his native Morocco. The government of Morocco forwarded documents to the State Department claiming him as a diplomat and asking that he be granted the usual immunities from the laws that diplomats enjoy.

Should the court hearing the Benomar case go along with that decision, it would set a very dangerous precedent, and the ramifications could be great for America’s national security.

Anyone acting as an agent of a foreign government effectively would be immune from prosecution—or even civil lawsuits—for whatever they did in the service of that government. Think about the proverbial Russian agents trying to sway American elections: whether or not they were Russian citizens, as long as they were acting in the service of the Russian government, they would be immune from American law. They could commit whatever crimes they wanted, do whatever harm they wished, and no one could hold them accountable.

Of course, the specific details of Benomar’s case make it even more clear that the claims of immunity are bunk. He wasn’t working as a diplomat in the service of Morocco; he was a hired spy working for the Qatari government.

We know this is true because his own court filings depend upon it. Benomar claims, in addition to whatever immunity he enjoys as a diplomat, his actions on behalf of the Qatari government are entitled to sovereign immunity. Benomar preposterously argues that, because a court in the Central District of California once found that Qatar is “immune under the Foreign Sovereign Immunities Act,” he should be immune as their “agent.”

Benomar is clearly guilty of violating both the international rule and the American clarification of that rule. He has engaged in paid work for the Qatari government to spy upon both its friends and its enemies, including citizens of the United States. This matters because international law governing diplomacy forbids diplomats from any professional or commercial activity. The Vienna Convention on Diplomatic Relations (VCDR) states this explicitly in its Article 42.

The United States’ own mission to the United Nations recently clarified their understanding of how that treaty applies. “Diplomatic privileges and immunity would apply,” the 2016 circular note reads, only to those who “perform on behalf of the Member State, diplomatic duties directly related to the work of the United Nations on a full-time basis [i.e. at least 35 hours a week] and shall not practice for profit any professional or commercial activity in the United States.” (Emphasis added.) Certainly, spying and hacking American citizens for profit counts as a “commercial activity” of a kind, even if it is illicit.

The law is not on Benomar’s side here, making it a perplexing question as to why the State Department seems to want to let the Qataris get away with this hacking scheme. After all, even actual officials of foreign governments are not protected from immunity for their conduct by the Foreign Sovereign Immunities Act. That law really intends to protect heads of state from being arrested or prosecuted, not just any agent of any government. For example, anyone could understand why it would be destructive to diplomatic relations if the Queen of England should be hauled into court during a state visit, just because someone dreamed up some lawsuit to target her.

Jamal Benomar, however, is hardly the King of Qatar; he is not even a Qatari citizen, and he is not here on a state visit. In fact, he isn’t on any kind of visit: he has lived in the United States for decades. As such, he ought to be subject to American law. Benomar is, at most, entitled to diplomatic privilege when he is working for the government of Morocco in his alleged role as a U.N. diplomat. His commercial transactions for other countries are not part of that work. He is therefore not entitled to immunity for his commercial operations.

We can hope the court hearing the Benomar case will understand the importance of being able to hold foreign agents to account for what they do here. Election meddling is only one way in which agents of foreign governments can cause mischief that is harmful to our way of life. The law exists to preserve good order in our society. Foreign agents cannot be immune to American law.

Photo Credit: Albin Lohr-Jones/Pacific Press/LightRocket via Getty Images

About David Reaboi

David Reaboi is a strategic communications consultant and national security and political warfare expert. He has written extensively on the Middle East, the Arabian Gulf, and Sunni Islamist movements. He lives in Miami Beach. He is a Claremont Institute fellow, and his work appears at The Federalist, Claremont Review of Books and PJMedia.

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