07-27-2011: Statement of Patrick F. Kennedy, Under Secretary of State for Management on Fulfilling Our Treaty Obligations and Protecting Americans Abroad
Statement of Patrick F. Kennedy, Under Secretary of State for Management
Before the Senate Committee on the Judiciary
Hearing on Fulfilling Our Treaty Obligations and Protecting Americans Abroad
July 27, 2011
Chairman Leahy, Ranking Member, distinguished Members of the Committee. I am thankful for the opportunity today to testify on the importance of Vienna Convention on Consular Relations (the “Vienna Convention”) when it comes to protecting Americans abroad. Specifically, I want to explain why we need other governments to follow the Vienna Convention so that we can assist our own citizens who are jailed overseas.
As we have stated publicly time and again, the protection of U.S. citizens abroad is among the Department’s highest priorities. The availability of consular assistance is key to the ability of persons worldwide to travel freely, securely, and with peace of mind, for tourism, business, commerce, educational exchanges, and countless other cross-border activities that have proliferated in our increasingly globalized world.
The preservation of a system of secure worldwide travel depends on mutual respect by all countries for the protective rules set forth in the Vienna Convention and bilateral consular conventions. Through our embassies and consulates, the United States provides many consular services to our citizens, including issuance of passports and other citizenship documents, assisting U.S. citizen victims of crimes perpetrated overseas, monitoring upon request the welfare of minors or U.S. citizens who have fallen ill overseas, assisting in evacuating U.S. citizens out of countries in crisis and a myriad of other consular services.
Perhaps most importantly, our embassies and consulates assist U.S. citizens who find themselves in the custody of a foreign government. In FY 2010 alone, consular officials assisted more than 3,500 U.S. citizens who were arrested abroad, and conducted more than 9,500 prison visits. For these citizens, access to and assistance from U.S. consular officers is essential, for example, to gain information about a country’s legal system and how to access a lawyer; report concerns about mistreatment or inhumane conditions while in detention; send messages or other communications to family members back home; or obtain assistance to secure needed dietary assistance, medicine, or religious items.
Prompt access and assistance by U.S. consular officers is often critical in ensuring the safety and protection of detained U.S. citizens overseas.
To cite a few recent examples:
• A U.S. service member was detained at an African airport with a souvenir letter opener that had ivory in the handle. 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 inform him of his options under local law. With the consulate’s help, the service member obtained a local attorney, who worked with police to pursue the vendors. As a result of this cooperation, the court accepted a plea deal and the service member was released.
• U.S. consular officers were able to arrange for nutritional care to be provided to 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 taken to the United States to live with family there, and he is now in good health.
• A U.S. citizen was convicted of drug smuggling overseas and had multiple physical and mental illnesses for which she required a variety of medications. When approached by the U.S. Embassy regarding the U.S. citizen’s deteriorating condition in prison, prison officials 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 eventually 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 Consular Affairs (CA).
• In several countries overseas, prisons do not provide enough food for basic nutrition. In many cases, prisoners must purchase additional food or request that family and friends bring food into the prison. Consular access permits consular officers to monitor the health of U.S. citizens in these conditions and ensure that they have access to proper dietary options.
• A U.S. citizen minor was arrested for drug possession and placed in a jail for adult inmates. Because her parents could not afford an attorney, she entered a plea without legal representation. Once notified of her arrest, U.S. consular officers visited frequently and closely monitored the case. Their intervention led the foreign authorities to arrange for legal aid, something not common in drug-related cases. Once she had access to proper legal counsel, the girl was able to argue against the charges more effectively and was ultimately granted bail.
• When notified that two detained U.S. citizens were being threatened with bodily harm by members of an indigenous group who believed they were involved in selling indigenous children, the consulate was able to quickly arrange for their transfer to a safer, more secure prison facility.
Not all U.S. citizens detained abroad have been so fortunate. Frequently, Americans detained in a foreign country are unaware that they may seek consular assistance, do not speak the language, and risk unfair proceedings, inadequate legal protections and poor representation, and unsafe prison conditions. Foreign officials sometimes fail to provide consular notification, and U.S. consular officers may find out about a detention months or even years after the initial arrest.
Department procedures direct consular officers to seek access to U.S. citizens as soon as they learn of a detention, through notification by foreign authorities or otherwise, and posts regularly send demarches or diplomatic notes complaining of failures to notify or denials of access. These communications cite the Vienna Convention or an applicable bilateral agreement, and reaffirm the U.S. commitment to these instruments and the seriousness with which the United States regards notification and access obligations. Thus, when three Americans crossed an unmarked border in Iran and were taken into custody in 2009 and consular notification was not forthcoming, the Department emphasized publicly that “Iran has obligations under the Vienna Convention” and demanded prompt consular access. When Iran granted access to our Swiss Protecting Power, the Department welcomed “the fact that Iran is meeting … its obligations under the Vienna Convention,” but we have repeatedly protested the lack of regular access since that time.
While countries’ obligation to follow these rules is independent of the United States’ performance, our inconsistent implementation of the Vienna Convention makes it significantly more challenging to represent credibly that the United States complies with the rules and takes them seriously. Any noncompliance consequently weakens the force of our insistence that other countries must respect the rules, and a high-profile execution while remedial legislation is pending would greatly exacerbate this image problem. Experiences in Iran, North Korea, Burma, Cuba, Pakistan, and elsewhere demonstrate that even unsympathetic governments can find it difficult to resist demands for consular access when presented with clear legal obligations backed up by the moral force of the requestor.
Distinguished Members of the Committee, in conclusion of my testimony, please remember that the United States is best positioned to demand respect for the consular rights of U.S. citizens abroad when we comply with our own treaty obligations for foreign nationals detained in the United States. The Department’s Bureau of Consular Affairs has worked tirelessly over the past decade to promote adherence by federal, state, and local officials with these requirements and has noted marked improvement in compliance over time. Our ultimate goal is full compliance on local, state, and federal level. With this compliance, I want to assure you that we can and we will represent convincingly to the world that we respect our consular notification and access obligations and we demand the same from other nations.
I am pleased to take your questions.
July 27, 2011
Thank you, Chairman Leahy, Ranking Member Grassley, distinguished members of the committee. I am pleased to testify on the proposed Consular Notification Compliance Act. Secretary Clinton vigorously supports this bill and has submitted a statement that is appended to my written testimony.
Three important reasons compel swift enactment of this legislation: protection of Americans detained abroad, preserving our vital foreign policy interests and safeguarding our reputation as a country that respects the rule of law.
First, your constituents are among the 4.5 million Americans who live abroad, who took 60 million trips abroad this past year, and the 103 million Americans who hold passports, all of whom depend upon consular protections to ensure their safe passage through foreign countries.
The Vienna Convention on Consular Relations -- a binding U.S. treaty -- mandates three simple rules: ask, notify and allow access. Arresting authorities must ask detained foreign nationals if they want their country's consulate notified; if requested, must notify the consulate; and must allow access where the consulate seeks it.
We strive to comply with these obligations, not from altruism, but from keen self-interest. We depend on other countries' mutual respect for these rules to secure safe travel for the millions of Americans who live, work, study, vacation and serve in our armed forces abroad.
In 2010 alone, U.S. consular officers assisted more than 3500 Americans detained by foreign governments. When in foreign custody, a consular officer is often the best, and sometimes only, resource a U.S. citizen has to navigate a confusing foreign legal system, or worse yet, one that does not respect due process or fundamental rights.
In many countries, a defendant has no protection from government searches and seizures, no guarantees against cruel and unusual punishment and no right to a lawyer. But when Americans are detained, the Vienna Convention can ensure that they can ask for a U.S. consular officer, who can then visit the citizen, assist in finding a local lawyer, facilitate communications back home, provide food and medicine and rigorously protest any mistreatment.
Thousands of Americans from all 50 states benefit from these services annually, but gross numbers are only part of the story. A U.S. service member was detained in an African airport with a small souvenir that contained ivory. Local authorities charged him with trafficking, which carried a mandatory decades-long sentence. U.S. consular officers promptly visited, helped him understand his legal opinions -- legal options and obtain a lawyer who worked with police to pursue the souvenir sellers. As a result, the court accepted a plea agreement, and the service member was released.
A minor U.S. citizen was arrested and jailed with adult inmates. Because her parents could not afford a lawyer, she entered a plea. Once informed of her arrest, U.S. consular officers visited and closely monitored the case. Their intervention led to foreign authorities arranging for legal representation, and the minor was granted bail. And these are just two of many examples. In short, Senators, if we fail to honor our consular obligations at home, American citizens -- including your constituents -- pay the price overseas.
Secondly, this legislation is essential to our foreign relations, as Deputy Assistant Attorney General Swartz will explain. Our ongoing failure to respect the Vienna Convention has placed great strains on U.S. relations with Mexico and could jeopardize our collaboration in many vital areas, especially border security and law enforcement. Many other essential partners -- including the United Kingdom, Brazil, Spain and Switzerland -- have repeatedly urged us to comply with our obligations. Failure to do so impairs our ability to advance U.S. interests across a wide range of law enforcement, security, economic and other issues.
Thirdly, this legislation is essential to our leading position as a nation that respects the rule of law. In this increasingly interdependent world, the United States simply cannot afford to have our partners at the negotiating table, or countries that we ask to fulfill their obligations, question our commitment to the rule of law. When we do not comply with our obligations, we lose credibility in assisting that other countries respect theirs.
This narrowly and carefully crafted legislation facilitates compliance with our consular notification and access obligations, while respecting our interests in normal law enforcement operations and criminal proceedings. We need this legislation urgently to protect Americans abroad, to preserve vital bilateral relationships and to maintain our reputation as a nation that keeps its word. If the United States is to ensure the strongest possible protections for our citizens overseas, your support is needed to ensure that the Vienna Convention safety net continues to protect your constituents and all American citizens.
On behalf of Secretary Clinton, I thank you for your consideration of this vital legislation, and I'd be happy to answer your questions. Thank you.