7-28-2011By Emily Sharpe
Law and Security
Yesterday, the Senate Judiciary Committee held a hearing to discuss legislation that would answer this basic question: “If you were arrested in Damascus and they gave you a dime, would you want to call your court-appointed lawyer or the American Embassy?”
Donald F. Donovan, the lawyer representing Mexico at the International Court of Justice in The Hague in 2004 (also a member of HRF’s Board of Directors), asked this question when he challenged the death row sentences of 52 Mexicans who were not given this simple choice when tried in the United States.
Americans who live, travel, and serve in the military abroad expect they will always have the right to contact the U.S. Embassy should they be arrested, detained, or tried in a foreign criminal justice system. It is this right that allows American parents to sleep a little bit easier knowing that when their children study abroad, the host country is obligated to notify the U.S. Embassy should they ever be detained. Journalist Clare Gillis was grateful that even when captured by pro-Ghadaffi forces in lawless Libya this April, her captors allowed Hungarian diplomats (acting as protecting power for the U.S.) to help contact her family and secure her release.
In theory, the United States must provide foreigners these same rights when they’re arrested on U.S. soil, since it ratified the Vienna Convention on Consular Relations in 1969. But in practice, the U.S. may not even match Libya: Texas has already executed two Mexicans who were never told they could contact their embassies for legal help. The Supreme Court made this legal breach very clear in 2008, when it invited Congress to pass a law that would uphold the “plainly compelling interests in ensuring the reciprocal observance of the Vienna Convention.” The Consular Notification Compliance Act, introduced by Chairman Leahy in June, would ensure judicial review for foreigners on death row who were never given consular access. It is also a legislative counterpart to an executive memo President George W. Bush sent to the Attorney General in 2005.
Witnesses at yesterday’s hearing gave ample reasons why this bill should be passed. John B. Bellinger, III, Legal Adviser to the Department of State under Secretary of State Condoleezza Rice, highlighted the practical reasons: “We don’t give foreigners consular access as a favor or because we believe in world government, but out of interest for the rights of U.S. citizens abroad.” In other words, we recognize that other nations will respect our citizens’ right to consular access only if we do the same for theirs. Bruce Swartz, Deputy Assistant Attorney General, emphasized that this legislation would serve the national security, counterterrorism, and law enforcement interests of the United States: “In protecting our country from terrorism, we rely on our good relationships with other countries.” Mr. Swartz noted that several of our close law enforcement and counterterrorism partners, such as the UK, Spain, and France, have voiced strong concerns about the U.S.’s failure comply to with the Vienna Convention, especially in the case of a British citizen on death row now who was denied consular access.
Patrick Kennedy, Under Secretary for Management at the State Department, reminded the committee that the single largest group of U.S. citizens abroad is military personnel, whose need for access to U.S. consular officers is crucial. Kennedy described a case in which a U.S. soldier abroad was detained at the airport when a souvenir he bought was found to contain ivory. Facing a sentence of dozens of years in jail, he called the U.S. Embassy immediately and consular officers secured a local lawyer who negotiated a plea deal. The soldier was freed and returned to the U.S.
Retired military leaders have stressed that our ability to secure U.S. military personnel these protections on foreign territory is contingent on reciprocal protections for foreign nationals here at home: “Legislation to ensure review and appropriate relief if needed when a foreign national faces or is sentenced to death, while relatively limited in scope, would improve foreign governments’ confidence in the United States’ ability to uphold its consular access obligations, making it more likely that such governments will grant this access to Americans in their custody.”
Consular notification and access is a nonpartisan issue. It had the support of the Bush administration, and it has the support of the Obama administration now. It has the support of the State Department, which knows firsthand the value of providing assistance to Americans abroad. It has the support of the Department of Justice, which has vetted the legislation for constitutional compliance. Even Senator Lindsey Graham (R-SC) stated adamantly at yesterday’s hearing that “we can’t jeopardize the welfare of our military personnel or citizens abroad,” citing the case of CIA agent Raymond Davis whose release was secured thanks to his right of access U.S. diplomats.
Human Rights First has voiced support for the Consular Notification Compliance Act in a letter submitted to Judiciary Committee Chairman Leahy and Ranking Member Grassley. In the letter, Human Rights First joined the ACLU, Amnesty International, Human Rights Watch, The Constitution Project and others to urge that denying review of consular access to foreign nationals in the U.S. could harm the integrity of our criminal justice system and call into question the U.S.’s commitment to the rule of law, thereby jeopardizing the interests and safety of American citizens abroad. Any Senator who has received a 2 a.m. phone call from a panicked parent recognizes the power of this bill to help serve the interests of constituents— who made over 60 million trips abroad last year— whenever they need access to U.S. consular officers overseas.