Ashley Deeks is an associate professor of law at the University of Virginia and a former assistant legal adviser at the State Department.
Nearly a dozen people were injured on May 17 in a brief but violent confrontation between two groups outside the Turkish ambassador's residence in Washington, D.C. (ANCA)

On Tuesday, a melee took place outside the Turkish ambassador’s residence in Washington as Turkish President Recep Tayyip Erdogan was visiting the United States. Authorities say members of Erdogan’s security detail and security guards from the Turkish Embassy were among those who clashed with peaceful protesters. Many officials — including members of Congress, D.C. Mayor Muriel E. Bowser and a State Department spokesperson — have justifiably expressed outrage at the assaults, which not only sent nine people to the hospital but also took a swipe at the type of First Amendment activity we see as critical to a democracy. “This is the United States of America,” said Sen. John McCain (R-Ariz.). “We do not do this here. There is no excuse for this kind of thuggish behavior.” Worse, some of the alleged assailants might not be subject to criminal prosecution because they hold diplomatic or similar immunities.

This seems unjust. But if the State Department determines that the Turkish officials who attacked the protesters are covered by these immunities, there are good long-term reasons for the United States to let the incident go without criminal charges. Diplomatic immunity protects U.S. officials abroad, too, and if we want to make sure American diplomats and agents aren’t subject to harassment in foreign courts, our options for holding Erdogan’s guards to account are limited.

International law regulates how countries treat each other’s embassies, diplomats and heads of state. The rules are intended to facilitate diplomatic exchanges and peaceful bilateral dialogue. One way the law does this is by rendering a state’s diplomatic officials immune from certain types of interference with their persons, offices and activities when they serve abroad. From the U.S. perspective, these immunities protect our diplomats from exposure to foreign judicial systems and ensure that our president and secretary of state can travel abroad without worrying about facing politically motivated criminal or civil cases.

As part of this web of international rules, the United States is responsible for protecting foreign embassies in Washington (just as foreign countries bear responsibility for protecting our embassies abroad). The Vienna Convention on Diplomatic Relations, to which the United States and 190 other countries are parties, says that host states have “a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” In practice, this means that the United States must ensure that no one in this country impermissibly enters an embassy’s premises or interferes with foreign diplomats who are posted here.

The United States has an obligation to protect embassies from violence and intrusions, but that doesn’t mean that people can’t protest peacefully outside diplomatic outposts. In fact, in 1988, the Supreme Court struck down a D.C. law that prohibited protesters from carrying signs within 500 feet of an embassy that brought that foreign government into “public disrepute.” As a result, U.S. law is now clear that the First Amendment protects peaceful protesters outside embassies, even if the protest creates diplomatic tension between the United States and the foreign government on the receiving end of the protest.

That brings us to what happened Tuesday. If security officials from the Turkish Embassy and Erdogan’s personal detail were, indeed, the people involved in the attacks, we may not be able to prosecute them for their actions.

Security officials who work for the Turkish Embassy likely hold “administrative and technical status,” which means that they are not subject to arrest or detention and enjoy immunity from criminal jurisdiction. They would be immune from civil suits as well, but only in connection with the performance of their official duties.

The status of Erdogan’s protective detail is less clear under international law. Erdogan himself is entitled to “head of state” immunity, which gives him complete criminal and civil immunity from foreign jurisdiction while he is in office. His retinue may also be entitled to the same type of immunity, because arresting them could interfere with the president’s diplomatic mission. On the other hand, security agents are much less critical to diplomacy than the head of state, so the reasons to give them immunity are diminished. News reports reflect that when President George W. Bush visited London in 2003, the Secret Service agents traveling with him were not given diplomatic immunity. In this case, the immunity of the protective detail may depend on whether Turkey notified the State Department about the agents before their visit.

This doesn’t mean that the U.S. government, the D.C. government or the protesters are out of options, even if none is as satisfying as arrests and indictments. First, the United States could ask Turkey to waive the security officials’ immunities and allow them to be tried by prosecutors. The United States successfully obtained a waiver in a case in which a senior diplomat from Georgia killed a Maryland girl while driving drunk. Georgia waived his immunities, and he served three years in jail. Turkey seems unlikely to be willing to waive, however, given the leadership’s intolerance for the type of dissent the protesters were expressing. In fact, Erdogan’s security detail seems to be making a habit of this type of activity: Last year, the detail roughed up protesters and journalists outside the Brookings Institution, where Erdogan was speaking. In any case, Erdogan’s security detail presumably already has left the country with their boss, which would make it difficult to prosecute them even if Turkey did waive their immunities.

The United States could also declare the embassy security guards “persona non grata” and require them to leave the country. U.S. authorities would be able to prosecute the guards or members of the security detail if they left the country and later came back to the United States in a nonofficial status (as a tourist, for instance). Finally, the United States could encourage the government of Turkey to compensate the injured protesters. As for recourse the protesters could seek, they conceivably could sue the embassy guards, but the plaintiffs would need to persuade the court that the guards’ actions were not part of their official duties.

This undoubtedly will seem like bitter medicine for the injured protesters, as well as for free speech supporters and critics of Erdogan’s authoritarian regime. However, the United States gains significant benefits from the rules of diplomatic and head-of-state immunity, and our diplomatic efforts would be significantly hindered if those rules didn’t exist. In international law, reciprocity is key: What you do to other states, they will do to you. Hypocrisy does not go unnoticed.

Take one recent incident in which the United States sought to rely on diplomatic immunity for a U.S. official. It involved Raymond Davis, a CIA contractor who killed two armed men in Pakistan during an attempted robbery. The United States asserted diplomatic immunity for Davis, who was attached to the U.S. consulate in Lahore in “administrative and technical” status. President Barack Obama demanded that Pakistan release him from custody, stating, “Obviously, we’re concerned about the loss of life. . . . But there’s a broader principle at stake that I think we have to uphold.” That principle is reciprocal immunity for diplomats and agents.

So if the U.S. government decides that the law requires it to accept the immunity of these Turkish agents, it will do so in significant part to ensure that we can demand immunity for our officials abroad in appropriate cases. Although it incurs a short-term cost, this is a price worth paying.