Testimony
Patrick F. Kennedy
Under Secretary for Management
Statement Before the Senate Committee on the Judiciary
Washington, DC
July 27, 2011


Good morning, Chairman Leahy, Ranking Member Grassley, and distinguished members of the Committee. I appreciate the opportunity to testify today on the proposed Consular Notification Compliance Act. We need swift enactment of this bill to ensure our ability to protect our own American citizens who are detained in a foreign country, to preserve vital international relationships, and to honor our binding treaty obligations.

Secretary Clinton has asked me to underscore that she vigorously supports this bill. She has submitted a statement, which you have before you, that is appended to my written testimony.

The protection of U.S. citizens abroad ranks among the Secretary’s and the Department’s absolute highest priorities. Senators, all of you have constituents who travel and live overseas. Your constituents are among the 4.5 million Americans who live abroad, the estimated 60 million who traveled abroad last year and the 103 million who hold passports – all of whom depend on consular protections, as much as they depend on passports and visas, to ensure their safe passage through foreign countries. To protect Americans in foreign custody, the Vienna Convention on Consular Relations – a binding U.S. treaty – mandates three simple rules: ―ask, notify, and allow access.‖ Arresting authorities must first ask detained foreign nationals if they want their country’s consulate notified; if requested, must notify the consulate; and, must allow access if the consulate seeks to provide assistance. Thus, our ability to secure safe worldwide travel for the millions of Americans who live, work, study, and vacation abroad depends vitally on all countries granting mutual respect to the protective rules in the Vienna Convention.

Mr. Chairman, some have asked ―why pass this bill, and why pass it now?‖ For three reasons: to preserve reciprocal treatment for U.S. citizens detained overseas, to protect our vital foreign policy interests, and to maintain our reputation as a country that values and respects the rule of law.

First, the Consular Notification Compliance Act is essential to ensuring that we will be able to protect American citizens. Without guaranteed consular assistance, Americans cannot travel the world freely, safely, and with peace of mind, whether for tourism, business, education, family matters, military service, or countless other activities. In 2010 alone, consular officers conducted more than 9,500 prison visits, and assisted more than 3,500 Americans who were arrested abroad. But the United States cannot ensure that it will be allowed consular access to our citizens abroad – to provide information on foreign legal systems, to facilitate communication with families, and to provide needed medical assistance – unless it ensures that foreign governments have the same access to their citizens detained here. We strive to ensure U.S. compliance with consular notification because of our strong interest in ensuring that other countries comply with their obligations with respect to our citizens.

Ensuring protection of citizens in foreign countries has been a time-honored component of government-to-government relations for centuries. Our consular notification and access obligations are part of a system that requires reciprocal compliance. We have vital interests in ensuring that other countries comply with their obligations when they arrest and imprison our citizens, and a reciprocal legal duty to ensure that we also comply. To ensure that mutual respect, securing protection for Americans through an international treaty system of consular assistance has been a high priority for both Republican and Democratic Administrations since the system’s inception.

The Vienna Convention, an extraordinarily important treaty, was signed by a Democrat – President Kennedy – in 1963, and transmitted to the Senate by a Republican – President Nixon – in 1969. It was ratified the same year with this body’s unanimous approval. When the Senate gave its advice and consent, the United States announced a view that continues today, that the treaty’s consular notification regime is capable ―of practical implementation in the United States, and, at the same time, is useful to the consular service of the United States in the protection of our citizens abroad.‖1 For over forty years, this treaty, which has been ratified by almost all the world’s countries, has been the law of the land in the United States, imposing binding obligations across the board on all federal, state, and local authorities.2

In the United States, federal, state and local law enforcement officials have in most cases been upholding these obligations for decades, informing foreign nationals, notifying their country’s consulates, and allowing them to make prison visits to their citizens in detention. Within the federal government, this has long been standard operating procedure for all relevant actors: including Homeland Security (U.S. Customs and Border Patrol and U.S. Immigration and Customs Enforcement), the FBI, federal prosecutors, Alcohol, Tobacco and Firearms, the Secret Service, the DEA, the U.S. Marshals Service, the IRS Criminal Investigation Division, and the U.S. Postal Inspection Service. State and local law enforcement also routinely provide consular notification and access, and for over a decade, the Departments of State and Justice have worked closely with federal, state and local authorities to ensure that they ask, notify, and allow access.3

Overseas, other countries likewise respect our citizens’ consular rights. Our consular officers work unflaggingly to ensure the safety and welfare of U.S. citizens in foreign custody, performing thousands of prison visits annually on behalf of Americans from all over the United States. When foreign governments fail to provide us with notification or refuse our requests to visit and assist an imprisoned American, we remind them of their obligations under the Vienna Convention, and in most cases, this is enough to secure access.

We find these protections particularly critical for the men and women serving in our Armed Forces, and their overseas dependents. The Department of Defense considers consular access very important for U.S. service members and their families, and the Department expects its personnel who are detained abroad to be able to benefit from a range of assistance from our consulates. In addition, it is in the Defense Department’s interests for foreign military personnel who may be arrested or otherwise detained in the U.S. to receive prompt access to their own consulates, in order to ensure that reciprocal protections are also afforded to U.S. personnel who may be detained abroad.

Senators, each of you has faced the traumatic experience of having a constituent detained overseas. In such circumstances, Americans often have nowhere to turn but the consular system. When a U.S. citizen finds him or herself in a foreign government’s custody, a consular officer is often the best, and sometimes only, resource that citizen has as he or she navigates a foreign legal system. These consular services are extensive and indispensable. Consular officers provide basic information about a country’s legal system and give valuable information on how to find a lawyer. Consular officers conduct regular visits and report back to Washington any mistreatment or poor conditions of detention. They monitor the mental and physical health of detained Americans, communicating concerns about an individual’s well-being not just to the detaining authority but also at a diplomatic level. Consular officers are also frequently called upon by our citizens to convey messages to the detained American’s family members, legal counsel, or congressional representatives back home. They work to ensure that our citizens have access to food, medicine, or religious items as needed. When an American is put on trial in a foreign country, consular officers often attend the trial and seek to ensure that the proceedings are being conducted in a manner that is fair, transparent, and understandable to the defendant. And through close monitoring by our consular officers of local proceedings involving U.S. citizens arrested overseas, the U.S. government may determine that detention is unjust or illegal, and may call on the detaining government to release the U.S. citizen.

We find these services especially critical in countries that do not respect due process of law and fundamental rights. In many countries a defendant has no protections equivalent to our own from government searches and seizures, no guarantees against cruel and unusual punishment, and no right to a lawyer. But in virtually every country in the world when Americans are imprisoned, the same treaties to which we are a party ensure that they have a right to see their consular officer.

Literally thousands of Americans benefit from these services annually. As the chart appended to this testimony attests, in the past five years, we have provided consular services to arrested Americans hailing from each of the 50 states. For example, our consular officers have visited at least 6 Americans from Vermont, 13 from Rhode Island, 13 from Delaware, 24 from Wisconsin, 25 from Iowa, 26 from Utah, 33 from South Carolina, 34 from Alabama, 34 from Connecticut, 35 from Oklahoma, 68 from Minnesota, 166 from Illinois, 325 from Arizona, 554 from New York, 822 from Texas, and over 2,300 from California. These statistics do not provide a complete picture of the number of consular visits we perform to U.S. citizens because, in many cases, we do not have information about the citizen’s state of origin.

But numbers tell only part of the story. Americans who have recently been detained in such countries as North Korea, Iran, Syria, Pakistan and Libya can tell you from their own experience how indispensable consular notification and access is for the protection of U.S. citizens detained overseas. I understand that Ms. Clare Gillis is here today to tell her own harrowing tale of her detention in Libya and how she benefited from these consular protections through the international network of consular assistance. But these are only a small fraction of the many stories of consular officers providing invaluable assistance to Americans detained abroad.

Just to give a few examples that did not make the news:

  • In 2007, a member of the U.S. Armed Forces was detained at an African airport with a small souvenir letter opener that contained ivory. Local authorities arrested him and charged him with trafficking in a banned item, an offense that carried a mandatory decades-long sentence. U.S. consular officers were able promptly to visit the service member and help him to understand his options under local law. With the consulate’s help, he obtained a local attorney, who worked with police to pursue the souvenir vendors. As a result of this cooperation, the court accepted a plea agreement and the service member was released.
  • A U.S. citizen serving a foreign prison sentence had multiple physical and mental illnesses for which she required a variety of medications. U.S. consular officers saw that her condition was deteriorating in prison, and spoke with local prison officials who acknowledged that, even with medication, her condition would continue to deteriorate because the level of care in the penal system was insufficient for her needs. With assistance from the Embassy, the country granted her conditional release, and the Embassy assisted with the logistics of her return to the United States, where she was met and assisted by medical personnel whose presence was arranged for by the Bureau of Consular Affairs.
  • A U.S. citizen minor in the Caribbean was arrested and placed in a jail for adult inmates. Because her parents could not afford an attorney, she entered a plea without a lawyer. Once informed of her arrest, U.S. consular officers visited and closely monitored the case. Their intervention led the foreign authorities to arrange for legal representation, and once she had access to proper legal counsel, the minor was ultimately granted bail.
  • When a U.S. citizen member of the Armed Forces was detained at a foreign airport by local customs officials in Mexico for attempting to enter with his U.S.-registered firearm, consular officers were able to work closely with his attorney, the government’s military, and the U.S. military to secure his rapid release.
  • U.S. consular officers were able to arrange for nutritional care for a special-needs infant born to a U.S. citizen incarcerated overseas. The consulate was able to assist the family in arranging to have the child brought to the United States to live with family members there.

Consular access can be particularly important in countries where we do not have diplomatic relations, as in North Korea where the Swedish Embassy represents the U.S. interests. In November 2010, U.S. citizen Eddie Jun was detained by North Korea. After North Korea finally identified Mr. Jun as a detainee, Swedish diplomats were able to visit Mr. Jun six times and inform the U.S. government that he was being well cared for. At U.S. request, Swedish diplomats continued to ask for regular consular access to Mr. Jun, until his release in May 2011.

In short, we strive to ensure domestic compliance with our consular obligations not from altruism, but from keen self-interest. If we fail to honor our consular obligations at home, we can expect your constituents to pay the price overseas.

Second, this legislation is not just vital for the protection of Americans abroad. Ensuring compliance with our legal obligations is essential to our foreign relations and close bilateral relationships. We demand consular notification and access from other countries and in return, we assure them that we will give it ourselves. In most cases, this system works remarkably well. But despite concerted efforts, our record has not been perfect. In certain cases, this system has broken down, and foreign nationals have proceeded through our legal system – at times facing serious charges – without being informed that they can receive the assistance of their consulate, in clear violation of our treaty obligations. The United States has been publicly called to account for these shortcomings in several high-profile cases, including the Avena case, in which the International Court of Justice (―ICJ‖) found the United States to have violated its Vienna Convention obligations with respect to 51 Mexican nationals who were convicted and sentenced for capital crimes without being informed that they could receive the assistance of their consulate, and ordered that the U.S. judicially review their cases to determine whether the individuals were prejudiced by the violation.4

The Bush Administration went to significant lengths to try to secure compliance with the Avena judgment. Our ongoing failure to comply has placed great strain on the U.S. relationship with Mexico; Secretary Clinton has stated that our relationship with Mexico is undoubtedly one of the most important bilateral relationships we have. Cooperation with the Government of Mexico on myriad, vital cross-border initiatives, including border security and law enforcement, which Deputy Assistant Attorney General Swartz will address in greater detail, is at an all-time high. This unprecedented level of cooperation has been accompanied by numerous tangible benefits for U.S. security and prosperity. For example, US-Mexico collaboration through the Merida Initiative has enabled greater cooperation between U.S. and Mexican law enforcement agencies, prosecutors and judges as they share best practices and expand bilateral cooperation in tracking criminals, drugs, arms and money. U.S., Mexican, and other law enforcement agencies in the region leverage opportunities to work together to investigate multinational law enforcement cases and share information.

Mexico has stressed on numerous occasions, however, that U.S. compliance with our consular treaty obligations is a priority issue on the bilateral agenda and a matter of significant concern to the Mexican public, and that our non-compliance could seriously jeopardize the ability of the Government of Mexico to continue working collaboratively in these areas.5 We need swift enactment of the bill before you to resolve our outstanding obligations under the Avena judgment, to reaffirm our commitment to our consular notification treaty obligations, and to remove this longstanding obstacle in the bilateral relationship.

The foreign relations implications of this legislation, moreover, reach well beyond Mexico. Other essential U.S. partners, including the United Kingdom, the European Union, Brazil, Spain, and Switzerland, follow this issue closely and have repeatedly and forcefully called upon the United States to fulfill these obligations, often at high levels. As time has passed, calls for U.S. compliance have become more vociferous. As anyone who has worked in diplomacy understands, such objections can impair our ability to advance U.S. national interests in our bilateral and multilateral relationships in many concrete ways across a spectrum of law enforcement, security, economic, and other concerns. The benefits that will flow from enactment of this legislation, and the continuing harm that will result if it is not passed, will not be limited to the consular sphere but will be felt across a range of issues that are critical to our national interest.

Third, enactment of this legislation is essential to our reputation as a nation that complies with the rule of law internationally. Our treaties are critical to protecting U.S. sovereign interests. U.S. treaties protect our diplomats and government officials overseas, allow us to secure extraditions for our own law enforcement purposes, prevent other states from proliferating nuclear, chemical and biological weapons and from trafficking in certain weapons, secure international cooperation to combat drug trafficking, and facilitate our businesses’ international economic relationships. We are constantly negotiating new agreements to advance fundamental U.S. interests and insisting that other states comply with treaty commitments to us that they have already made.

In this increasingly interdependent world, the United States simply cannot afford to have our partners at the negotiating table or those nations whom we ask to fulfill their own legal obligations question our own commitment to the rule of law. When we do not comply with our obligations, we lose credibility in our insistence that other countries respect theirs. Enactment of the Consular Notification Compliance Act will send a strong message to valued international partners that the United States takes seriously its obligations under the Vienna Convention.

Our continued non-compliance with the Avena judgment directly impacts our reputation as a country committed to the rule of law -- a harm this narrowly tailored legislation would urgently address. Compliance with our consular obligations has never been a partisan issue –since President Kennedy signed the Vienna Convention and it was ratified by President Nixon, with the advice and consent of the Senate, Democratic and Republican Presidents across multiple administrations have consistently recognized that compliance with these obligations is indispensable to U.S. interests. The last Administration likewise recognized the critical importance of honoring our legal commitments relating to consular assistance to ―securing reciprocal protection of Americans detained abroad,‖ ―the need to avoid harming relations with foreign governments, including Mexico,‖ and ―the interest in reinforcing the United States’ commitment to the rule of law.6

After the Avena decision was handed down, recognizing the important consequences of the decision for the safety of Americans overseas, President Bush took the extraordinary step of directing state courts to give the ICJ judgment domestic legal effect. Although the U.S. Supreme Court determined in Medellín v. Texas, 552 U.S. 491 (2008), that this effort was constitutionally insufficient, Chief Justice Roberts’ opinion for the Court recognized that judgment as a binding international legal obligation, and agreed that the United States’ interests in observance of the Vienna Convention, in protecting relations with foreign governments, and in demonstrating commitment to the international rule of law through compliance with that judgment were ―plainly compelling.‖ Medellín, 552 U.S. at 524. He further explained that this compliance could be secured by means of legislation.

Picking up where the last Administration left off, this Administration has worked diligently to find the legislative solution the Court recommended. The Consular Notification Compliance Act was developed in close cooperation with the State and Justice Departments, in order to secure narrow, carefully crafted legislation that facilitates our compliance with our current and future consular notification and access obligations, but also takes into account important interests in facilitating normal law enforcement operations and criminal proceedings – a balance that my DOJ colleague, Deputy Assistant Attorney General Swartz, will discuss in more detail in his testimony.

We consider compliance with these obligations so vital, and the harm from noncompliance so irreparable, that the United States requested that the Supreme Court delay the execution of Humberto Leal García, a Mexican national who was subject to the Avena judgment and whose execution without affording him the hearing provided by this legislation would violate our legal obligations. In denying the request, the Supreme Court made clear that Congress is the appropriate body to take action to bring us back into compliance with our obligations. By so saying, the Court left no doubt that Congress can solve this lingering problem, once and for all, by passing this legislation now, before another execution of an individual covered by Avena takes place, and causes further damage to our reputation in this area.

Distinguished Senators, if the United States is to ensure the strongest possible protections for our citizens overseas and end this continuing thorn in our international relationships, the initiative is yours and the time to act is now.

On behalf of Secretary Clinton and the Department, I thank you for your consideration of this vital legislation. We consider this a matter of great urgency. Time has demonstrated that a solution is essential, and failure to act is not an option. I am happy to answer your questions and to continue to work with you towards expeditious enactment of this most important piece of legislation.

STATEMENT OF SECRETARY OF STATE HILLARY RODHAM CLINTON

The State Department has no greater responsibility than the protection of U.S. citizens overseas – particularly when Americans find themselves in the custody of a foreign government, facing an unfamiliar, and at times unfair, legal system. Last year alone, our consular officers conducted over 9,500 consular visits with more than 3,500 Americans who were in the custody of foreign governments. Through the international system of consular assistance – a system that has evolved over centuries and today is reflected in binding U.S. treaties– we are able to reach our citizens in these vulnerable situations and help them receive food and medical assistance, communicate with their families, and provide them with information regarding foreign legal systems and how they can access legal counsel overseas. In return, the United States has committed to permit foreign officials to provide the same assistance to their own citizens who are arrested here.

This protective system of consular assistance depends on mutual compliance with these obligations by the United States and our treaty partners. If the United States fails to honor our legal obligations toward foreign nationals in our custody, the fabric of this protective system is torn, and ultimately it is Americans who are harmed. And although we work strenuously to honor these commitments, unfortunately at times our own compliance has broken down.

The bill that is before you—the Consular Notification Compliance Act—is a carefully crafted piece of legislation which seeks to ensure that the United States keeps these treaty promises. The bill provides practical steps for federal, state and local authorities to follow to comply with consular notification rules. It would also give foreign nationals in a small number of very serious cases the chance to prove that they were prejudiced by our own failure to provide them with the opportunity for consular assistance, consistent with our legal obligations.

Enactment of this legislation is also essential to our vital foreign relations interests. Our failure to act, and to act now, threatens our close partnership with Mexico, including in the fight against organized crime and drug trafficking and securing our border. Many other countries, including important U.S. allies, have pressed us to comply with these obligations with increasing urgency. Enacting this legislation will demonstrate to the world that we are a nation that keeps our promises. Failure to enact it invariably will harm our ability to secure U.S. interests across a range of law enforcement, security, and other goals.

To protect our citizens, we need to do our part to protect those of other countries. Because enactment of this bill serves our critical interests in protecting our citizens, preserving our foreign policy relations, and abiding by our promises under vital treaties we have ratified, I join the Department of Justice and the rest of the Administration in urgently calling on Congress to pass this narrow and carefully crafted legislation. Thank you very much.

American Citizens Visited by Consular Officers while Detained Abroad, by State of Residence or State of Birth, 2006-2011 7

If a scroll bar appears below the following table, swipe the table to move left/right of the dashed line.

July 22, 2011 State or territory of residence (or, where that information was not available, state of birth)

2006

2007

2008

2009

2010

2011 (July 2011)

Total number of U.S. citizens visited by consular officers while detained abroad, 2006-2011

Alabama (AL)

7

3

4

4

12

4

34

Alaska (AK)

0

6

3

2

3

4

18

Arizona (AZ)

51

94

55

51

48

26

325

Arkansas (AR)

5

2

2

1

6

1

17

California (CA)

530

473

483

351

359

192

2,388

Colorado (CO)

15

17

14

22

18

10

96

Connecticut (CT)

5

4

3

8

9

5

34

Delaware (DE)

5

0

1

6

1

0

13

District of Columbia (DC)

2

4

1

7

4

0

18

Florida (FL)

92

88

82

103

101

55

521

Georgia (GA)

22

19

24

18

30

20

133

Guam (GU)

0

0

0

1

0

0

1

1 Report of the United States Delegation to the United Nations Conference on Consular Relations, Vienna, Austria, March 4 to April 22, 1963, reprinted in S. EXEC. DOC. E, 91st Cong., 1st Sess., at 60 (1969).

2 The United States also has concluded dozens of bilateral agreements that likewise guarantee the right of U.S. consular officers to assist Americans imprisoned abroad. These agreements are also binding domestic law, and federal, state, and local authorities are obligated to comply with them.

3The Department of State alone has distributed over a million sets of briefing materials on consular notification and regularly conducts training sessions all over the country. Our Consular Notification and Access Manual anchors our outreach efforts and has become a valued resource for federal, state and local law enforcement officers. That manual explains the very simple and practical steps that should be taken to fulfill consular notification and access requirements in real-world contexts. The manual provides comprehensive guidance to law enforcement officials, practitioners, and academics; includes sample consular notices in 21 different languages; and sets forth draft guidelines and standard operating procedures that federal, state, and local entities are encouraged to adopt and adapt. The Department also distributes pocket cards and training videos for law enforcement personnel on consular notification and access, maintains comprehensive and up-to-date information on consular notification on its publicly-available website, www.travel.state.gov/consularnotification, and even has a consular notification Twitter page – now followed by 1,217 organizations and individuals.

4 Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31).

5 Among many other communications at high levels over the past two Administrations on these issues, Mexico sent diplomatic complaints to the State Department strongly protesting the executions of two Mexican nationals in Texas who were convicted and sentenced to death without being informed that they could receive the assistance of their consulate: José Ernesto Medellín in August 2008, and Humberto Leal García in July 2011. These individuals were covered by the Avena judgment, which obligated the United States to provide them review for any prejudice to their conviction or sentence resulting from the consular violation

6 Brief of the United States as Amicus Curiae Supporting Petitioner at 11, Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984).

7 These statistics do not provide a complete picture of the number of consular visits we perform to U.S. citizens because, in many cases, we do not have information about the citizen’s state of origin.