Police Officer: Hello. Yeah, this is John Absalon. The American Consulate where? Mexico? Yes, my son is there on spring break. What? He’s been arrested? Oh my God … What do I do?
Narrator: A parents’ nightmare. A phone call telling you that your child is in trouble with the law. But the worst part of this scenario is that he’s in trouble thousands of miles away, in another country.
It slowly dawns on you that the legal system you know, the system you enforce, the system that guarantees your rights, and is fundamental to the American way of life does not apply to your child.
When an American is arrested or detained abroad, the State Department—through our Embassies and Consulates—ensures that U.S. consular officers are there to assist. They help see that Americans are treated humanely and in accordance with local law, are given the opportunity for a lawyer, and can correspond with family back home.
Americans who are arrested abroad often find themselves in a very confusing situation. For one, they are not familiar with the legal system in the country in which they are arrested; they may not understand the language; and they may not understand the charges against them and the possible sentence they may receive if convicted of a crime. U.S. consular officers do what they can to help.
U.S. Consul: A consular officer or “consul” is a member of the Foreign Service of the United States who provides assistance to American citizens living or traveling abroad, and is also involved in processing passports for Americans who live abroad and visa applications for foreign citizens who wish to visit or immigrate to the United States.
When we learn of an arrest of an American citizen, we make contact with that person as soon as we can. Depending on the situation, notification can come to us from the arresting officer or an officer at the jail where the person is being held. Notification could also come directly from the person who has been arrested, from the prosecutor, or from the court.
Narrator: Under the U.S. Constitution, a treaty like the Vienna Convention on Consular Relations is the law of the land. It is in effect in all but about 20 countries of the world, and its basic rules on consular notification and access apply everywhere by virtue of customary international law.
Bilateral treaties with a number of countries reinforce and supplement these rules. Because of the Vienna Convention and these other treaties, U.S. consular officers overseas have the right to communicate with arrested or detained U.S. citizens on foreign soil.
U.S. Consul: Once we learn of the arrest, we provide the American citizen with a list of attorneys since they are going to need legal assistance. We also assess their health and the conditions of their detainment.
The arrested American citizen chooses a local lawyer for their own legal representation. The U.S. Consuls cannot provide legal advice, but we try to explain some basic things about the country’s legal system. We help them understand what they can expect as their case works its way through the courts.
If we find that the American is not being treated humanely, we take up the issue with the authorities in charge of the jail. And, if the American gives us permission, we can contact family members in the United States and let them know that their loved one has been arrested, and transmit letters or other correspondence between the American and their family members.
Narrator: Knowing about the rights guaranteed under the Vienna Convention can ease some of the worries of family members of the arrested American.
Police Officer: Yes, is this the U.S. consular officer? Thanks so much for calling me back. Did you learn anything more about my son’s case? Oh, only a fine? He just has to pay a fine. Ah, that is excellent. Thank you, and the rest of the staff of the U.S. consulate, for helping my son through this difficult and traumatic event. Can I send him the money to pay the fine? I can do it through the Consulate? Great!
Narrator: Just as the Vienna Convention and other treaties protect Americans overseas, they also apply to foreigners residing in or visiting the United States.
They ensure that federal, state, and local authorities provide the opportunity for arrested or detained foreigners to communicate with consular officers from their governments, and for those consular officers to provide them with appropriate assistance.
The Vienna Convention’s basic rules are simple:
1. The authorities must ask the detained foreign national “without delay” if he or she wants to have the consulate notified;
2. If the foreign national says yes, the authorities must notify the consulate; and
3. If the consulate then requests to speak with or visit the foreign national, the authorities must allow a visit.
In addition, bilateral treaties with 57 countries require that the authorities notify the consulate even if the detained foreign national does not request it. A list of these countries can be found on the State Department’s website, http://travel.state.gov/consularnotification.
Mexican Consul: The assistance of consular officials is a provision of the Vienna Convention on Consular Relations, a treaty that binds all of our countries to allow our citizens access to their embassies and consulates.
In the U.S., it means that American authorities are required to inform arrested foreign nationals that their consulate may be notified of their arrest if they request it.
Just as American consuls help American citizens arrested overseas, we help our arrested citizens here in the United States. They need consular help because in many occasions they don’t know what the American legal system is about, they don’t know what their rights are, they don’t know what they are supposed to do, and they may need assistance finding a lawyer.
On many occasions they don’t speak English. So the consul steps in and helps explain the basics of the legal system and can help arrange for a lawyer to represent them in their legal case.
It is very important that we obtain notification without delay so that we can go and take action as consuls. And it is also important for citizens of the United States when they are in Mexico. When Mexican police go through these procedures, it ensures that arrested Americans have the opportunity to have access to their consuls.
Narrator: By complying with the Vienna Convention on Consular Relations and other treaties where they apply, we help ensure that other countries meet the same requirements with Americans living or visiting abroad. This helps level the playing field. The commitment starts with law enforcement professionals.
Police Officer: Hey, is he a foreign national? Have we asked him if he wants us to notify his consulate?
Narrator: In the U.S., failure to offer consular notification to a detained foreigner or to allow consular officers to visit them may not necessarily affect the outcome of the case, but it could and this is a risk we shouldn’t take.
It could also cause diplomatic problems between the United States and the other country and affect our ability to expect access to Americans detained abroad. Notification is the law and it’s the right thing to do.
We cannot stress enough the importance of good recordkeeping in this, as in all legal matters. Law enforcement agencies should keep written records showing compliance with the consular notification requirement—when the foreign national was told about consular notification, whether they then requested that the consulate be notified, and if so, which consulate was notified and the date and time of notification.
The best way to notify consular officers of an arrest or detention is also the best way to create a written record—use the fax, and keep the confirmation sheet showing that the fax went through successfully. Most arrests do not happen during regular business hours, so trying to telephone can be difficult.
Mexican Consul: The best way to contact us is by fax. That way, we have something in writing, and it is a lot easier to follow up. We have the right phone numbers, the right spelling of names. These arrests often happen after hours and with a fax, we have a record when we come in the next day, and there is always a record on file of when we were notified of the arrest.
When we first get notified of an arrest, we will try to first call the arresting authorities to find out why the person was arrested, whether they have contacted their family, whether the person knows they can communicate with the consulate and has our phone number. If the police haven’t done these things then we request that they do them, and then we follow up.
Narrator: Faxing allows you to make notification during booking or arraignment procedures. And the confirmation sheet printed out by your fax machine becomes your record that notification was made, the fax number it was sent to, and the date and time it was sent.
The State Department often receives inquiries from foreign governments about failure of notification. The Department, in turn, requests a report from the state, city, or locality where the detention occurred. Good recordkeeping can ward off legal challenges. It can also prevent a potentially embarrassing claim by a foreign country that the U.S. is not living up to its responsibilities.
The Department of State is committed to working with local, state, and federal officials to ensure that arrested or detained foreign nationals receive what they are entitled to under the Vienna Convention on Consular Relations and other consular treaties.
Some of you may have attended seminars on these issues. The State Department is available to provide training on these issues, through seminars, webinars, and advice in individual cases. All you need to do is ask. We’re here to help in any way we can.
The State Department’s manual on Consular Notification and Access can help you better understand all these issues. In the manual are sample fax sheets you can use when making consular notification, as well as suggested consular notification statements in English and the 20 foreign languages most commonly spoken by foreigners in the United States.
You can show these to the foreign national and have them sign whether they want the consulate notified or not, and then keep the record in the file. The Department of State also distributes pocket cards that summarize key points from the manual on how consular notification should be done.
Both the manual and the pocket cards are available free of charge. The State Department issues thousands of copies of each every year to federal, state, and local police; prison officials; prosecutors; governors’ and mayors’ offices; and many others. All you need to do is contact the State Department and ask for a copy.
It’s also available on the internet, along with much more information on consular notification, at http://travel.state.gov/consularnotification.
Remember that consular notification here has important implications for the way Americans are treated overseas.
We hope you’ll agree how important consular notification is. Think of it as meeting the international golden rule. After all, offering to notify a consul is the law, and it is the right thing to do.