Detention procedures applicable to Indian diplomat D. Khobragade, US clarifies

In the case of the senior Indian diplomat, Deputy Consul General Devyani Khobragade, arrested in New York last Thursday, the U.S. Marshals Service (USMS), the “police” of the Department of Justice (DoJ) answered multiple media queries confirming that she had been “strip-searched.”

While it was also clear that she had been handcuffed, the USMS however shied away from providing further details surrounding the conditions of her detention between around 9.10am and 4pm that day, saying only that she was “was subject to the same search procedures as other USMS arrestees in accordance with USMS Policy Directives and Protocols.”

To understand these protocols better, The Hindu identified the specific protocol documents – known as Prisoner Operations Service Directives – that determine what actions the USMS can take against an inmate of the sort that Ms. Khobragade was considered to be.

The documents separately address three USMS protocols, respectively for “body searches,” “restraining devices,” and “DNA sample collection.”

According to the body searches protocols, there are four types of searches that the USMS is authorised to conduct: pat-down search, in-custody search, strip-search and digital cavity search. Of these the USMS and other sources have indicated that the strip-search was performed on Ms. Khobragade.

Defined as a “complete search of a prisoner’s attire and a visual inspection of the prisoner’s naked body, including body cavities,” the strip-search is typically ordered depending on the circumstances surrounding the prisoner’s detention, specifically whether the is a pre-trial detainee, which the diplomat was.

The USMS protocol mandates that when such a search is conducted Marshals should ensure they have “a private location that prevents all but designated personnel from viewing the prisoner,” and “all attempts to protect the modesty of the prisoner will be made to include modifying viewing and recording of CCTV.”

It also requires that only a deputy of the same-sex can conduct a strip-search unless the person conducting the search is a physician or nurse, and a witness of the same-sex as the person being searched must be present during the search.

The use of “reasonable force” is allowed if the prisoner refuses to cooperate in removing any article of clothing or otherwise impedes the deputy; however Marshals are called upon to do the search “in a professional manner, causing the prisoner as little embarrassment as possible.”

When conducting a strip-search, the deputy will instruct the prisoner to remove all loose articles and conduct “a thorough visual examination of the prisoner’s body, from the top of the head to the bottom of the feet,” the protocol says.

The deputy then moves on to inspect behind each ear and look inside the prisoner’s ear canals, nostrils, and mouth, checking under the tongue, roof of the mouth, and between the lips and gums.

They are also required to visually inspect down the front of the body, paying close attention to areas such as armpits, breasts, and genital area, the protocol says, including directing the prisoner to “spread her legs and bend forward at the waist [to] observe the anus area and genitals from the rear.”

“Conclude with an observation of the bottoms and between the toes of both feet,” the protocol advises.

In terms of the restraints that may have been used on Ms. Khobragade, USMS protocols firstly mandate that “All persons in the operational custody of the USMS will be fully restrained during transportation,” and the definition of “fully restrained” is that “handcuffs, waist chains, and leg irons (shackles) are required.”

Ms. Khobragade was undoubtedly in transit while under custody on Thursday, as it was initially the State Department’s Diplomatic Security Service that arrested near her daughter’s school, then handed over to USMS custody and finally she was produced in a courthouse later that day.

This implies that she is likely to have been “fully restrained” at several points during the day, as defined by the protocol.

Additional protocol-recommended restraints that may have been used include “padlocks, flex cuffs and security boxes.”

Finally, the protocols also call for DNA sampling for all prisoners facing criminal summons by a U.S. District Court for the purpose of facing federal charges “regardless of which federal law enforcement agency is the investigative agency.”

To this end USMS personnel are required to DNA sample collection kits and techniques as provided and advised by the FBI respectively.

Here too the use of “non-lethal force” is allowed within the protocols “as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who is unwilling to submit to DNA collection.”

According to DoJ documents the most common DNA “reference samples” collected from prisoners are “blood, oral/buccal swabs, and/or plucked hairs (e.g., head, pubic).”