[Senate Hearing 112-148]
[From the U.S. Government Publishing Office]
S. Hrg. 112-148
FULFILLING OUR TREATY OBLIGATIONS AND PROTECTING AMERICANS ABROAD
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JULY 27, 2011
__________
Serial No. J-112-37
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 147
WITNESSES
Bellinger, John B., III, Partner, Arnold & Porter LLP, and
Adjunct Senior Fellow in International and National Security
Law, Council on Foreign Relations, Washington, DC.............. 19
Gillis, Clare, Freelance Journalist, New Haven, Connecticut...... 21
Kennedy, Patrick F., Under Secretary for Management, U.S.
Department of State, Washington, DC............................ 5
Rivkin, David B., Jr., Partner, Baker Hostetler LLP, Washington,
DC............................................................. 23
Swartz, Bruce C., Deputy Assistant Attorney General, U.S.
Department of Justice, Washington, DC.......................... 7
QUESTIONS AND ANSWERS
Responses of Patrick F. Kennedy to questions submitted by
Senators Leahy and Klobuchar and attachments................... 32
Responses of David B. Rivkin, Jr., to questions submitted by
Senators Klobuchar, Grassley and Leahy......................... 93
Responses of Bruce C. Swartz to questions submitted by Senator
Grassley....................................................... 95
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union; Amnesty International USA; Human
Rights Defense Center; Human Rights First; Human Rights Watch;
Justice Now; Leadership Conference on Civil and Human Rights;
National Association of Criminal Defense Lawyers; Safe Streets
Arts Foundation; Advocates for Human Rights and Constitution
Project, July 27, 2011, joint letter........................... 103
Assist News Service, February 10, 2008, article.................. 105
Bellinger, John B., III, Partner, Arnold & Porter LLP, and
Adjunct Senior Fellow in International and National Security
Law, Council on Foreign Relations, Washington, DC, statement... 108
Clinton, Hillary Rodham, Secretary of State, Washington, DC, July
27, 2011, letter............................................... 120
Gillis, Clare, Freelance Journalist, New Haven, Connecticut,
statement...................................................... 123
Graham, Hon. Lindsey O., a U.S. Senator from the State of South
Carolina, April 23, 2008, letter............................... 125
Holder, Eric H., Jr., Attorney General and Hillary Rodham
Clinton, Secretary of State, Washington, DC, June 28, 2011,
joint letter................................................... 127
Kennedy, Patrick F., Under Secretary for Management, U.S.
Department of State, Washington, DC, statement and attachment.. 130
Panetta, Leon, Secretary of Defense, Washington, DC, August 31,
2011, letter................................................... 149
Pruitt, E. Scott, Oklahoma Attorney General, Oklahoma City,
Oklahoma, August 3, 2011, letter............................... 152
Rivkin, David B., Jr., Partner, Baker Hostetler LLP, Washington,
DC, statement.................................................. 154
Strange, Luther, Attorney General, Montgomery, Alabama, August 1,
2011, letter................................................... 166
Swartz, Bruce C., Deputy Assistant Attorney General, U.S.
Department of Justice, Washington, DC, statement............... 168
FULFILLING OUR TREATY OBLIGATIONS AND PROTECTING AMERICANS ABROAD
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WEDNESDAY, JULY 27, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Franken, Blumenthal, Grassley, and
Graham.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. Today we are going to hear
testimony about legislation I introduced last month,
legislation with the support of the Department of Justice, the
Department of State, and the Department of Homeland Security,
to help bring the United States into compliance with its
obligations under the Vienna Convention on Consular Relations.
This is a treaty made under the authority of the United States.
Of course, a treaty that we enter into carries the force of law
in our country.
In an important way, we began our opening statements for
this hearing a week ago when Senator Grassley raised the issue
at an earlier hearing last Wednesday. We agreed on an important
principle then--that treaties ratified by the United States are
the law of the land and, like any law, must be honored. Senator
Grassley appropriately made reference to the Supremacy Clause
contained in Article VI of the Constitution that provides for
the Constitution, Federal laws, and treaties to be treated as
``the supreme Law of the Land.'' That is central to this
hearing.
If we can remain focused on that shared principle, I am
confident we can find a solution to the problem that continues
to plague us. As you know, President Bush tried to get us to
comply with our legal obligations, unsuccessfully. I supported
President George W. Bush in that regard.
Each year, thousands of Americans--including from every
State represented by this Committee--are arrested overseas
while they study, travel, work, and serve in the military. Like
many other Senators, I have gotten those calls at 2 o'clock in
the morning or 3 o'clock in the morning from an anxious family
member saying their husband, wife, son, daughter, brother, or
sister have been arrested in--naming the country--``What can we
do? '' Well, I tell them their well-being often depends on the
ability of United States consular officials to meet with them,
monitor their treatment, help them obtain legal assistance, and
connect them to family back home.
In those countries, we remind the people that we are all
signatories to this Vienna treaty, and so our consular members
have to be able to speak to them. I am worried about what has
happened a few times in our country that some of these
countries are going to say, ``Wait a minute. You want us to
follow that, but you do not follow it.''
We know that access is protected by the treaty ratified in
1969 after a bipartisan vote in the Senate. This treaty has
been supported by every President, Republican or Democratic,
ever since. The treaty is not ``foreign law.'' It is American
law and has been for more than 40 years. And the United States
joined the treaty and made it our law. Why? Because it protects
our citizens.
The value of that treaty has never been questioned. But as
with any treaty, with any law, it is only effective when
enforced. And right now, in too many cases, the United States
is not being faithful to this law. That failure puts Americans
in other countries at risk, and those other countries are able
to say, ``Well, you do not follow the law, so we are not going
to follow the law, and your American that we are holding in
jail is now in trouble.''
This should not be a partisan issue. President George W.
Bush tried to fix the problem through an Executive memorandum,
but the Supreme Court rejected that approach. In a decision by
Chief Justice Roberts, the Court agreed that reciprocal
observance of the treaty was a ``plainly compelling'' American
interest, but ruled that the solution had to be implemented by
Congress and not the President. The legislation I introduced
follows the approach taken by President Bush but does it--as
Chief Justice Roberts insisted--and I disagree with his
conclusion in that, but I am doing it as he has insisted--by
way of implementing legislation.
Now, I recognize that solving this problem requires us to
deal with cases involving heinous crimes. In no way do I want
to minimize the seriousness of these offenses or the importance
of seeing justice done for the victims of these crimes. I am a
former prosecutor. I prosecuted a lot of these heinous type
crimes, and I feel as strongly about that as anyone. The bill
is not about letting dangerous criminals go free. Criminals
must be held accountable for their actions.
What the legislation does is offer a very narrowly crafted
solution that will have the least impact possible on those
cases and our courts while maximizing protections for United
States citizens. In order to bring the United States into
compliance with its legal obligations, the bill merely provides
the Federal courts with the opportunity to determine if the
denial of consular access resulted in an unfair conviction or
sentence in a limited number of cases.
Now, some have suggested that the bill is an attack on the
death penalty or an effort to further delay the habeas corpus
review process. Of course, neither claim is true. That is not
what is intended. The bill provides one-time review for a
limited group of cases. It has no effect on habeas review for
anyone else. It is not going to clog our courts; it is not
going to delay future cases. In fact, moving forward, the bill
seeks to eliminate the need for future habeas claims regarding
consular notification by ensuring that these issues are dealt
with before trial.
So imagine the case, as I said before, of an American
sentenced to death in a foreign country without any
notification to the U.S. Government, not having the access that
he is supposed to have. Every one of us--Republicans and
Democrats alike--would be outraged. There are currently foreign
nationals on death row in the United States, some of whom were
never told of their right to contact their consulate, and their
consulate was never informed of their arrest, trial,
conviction, or sentence. That is not in compliance with our
treaty and, thus, not in compliance with our law.
I have heard from retired members of the U.S. military
urging passage of the bill to protect service men and women and
their families overseas. I have heard from former diplomats of
both political parties who know that compliance with the treaty
is critical for America's national security and commercial
interests.
In conclusion, the bill is about three things only. It is
about protecting Americans when they work, travel, and serve in
the military in foreign countries. It is about fulfilling our
obligations and upholding the rule of law. And it is about
removing a significant impediment to full and complete
cooperation with our international allies on national security
and law enforcement efforts that keep Americans safe. We have
to bring the U.S. into compliance with our legal obligations.
We cannot continue to ignore the treaty and at the same time
expect other countries to honor the treaty.
Senator Grassley.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Yes, let me preface my remarks with a
couple points based upon what you just said.
No. 1, you will see from my statement that I read your bill
a little bit differently than you do, and maybe that can be
clarified through this hearing or through private discussions
you and I might have. But I see it a little bit differently
than you do.
The second thing, I would say you do accurately reflect the
15-second discussion we had on the Supremacy Clause. But when
you get into this issue, I think it is a little broader than
what just our 15-second statement would be, and I will make
some comment on that.
The United States fulfills its treaty obligations under the
Vienna Convention, and we do protect Americans abroad. I
appreciate the fine work of the men and women of the State
Department who provide consular assistance to arrested
citizens. And Secretary Clinton called me last night, and we
had a very good discussion, and she told me about 9,500
Americans being helped abroad on this, and how even 24 or 25
Iowans were helped on this, and she saw this as a very
important piece of legislation, and I said I would be glad to
continue discussion with her.
The Supremacy Clause requires adherence to treaties, not to
rulings of international judicial bodies, and treaties that
conflict with emphasis upon later enacted statutes lose
applicability to the extent of any conflict. That is the case
here. Most importantly, the Supremacy Clause requires adherence
to the Constitution.
The real subjects of this hearing are the retroactive
ability of foreign murderers on death row to have another
chance to delay the imposition of their sentences and the
weakening of the sovereignty of the Nation and of our 50
States.
This bill is also about the death penalty. There is no
reason to believe that any American would lose consular access
if the International Court of Justice Avena decision were not
enforced. None has done so since the 2004 ruling. But there is
no doubt that the conviction and death sentences of scores of
foreign murderers would face another round of judicial review
if the bill is passed. Due to the broadest language in the
bill--and the bill contains this language: ``Notwithstanding
any other provision of law, those habeas petitions will not be
governed by the 1996 amendments that we made in the habeas
laws.''
There is every reason to expect that judges will use those
habeas petitions to retroactively delay and sometimes block the
imposition of lawful death sentences against clearly guilty
killers. It is the families of the victims of those murderers
who will be harmed if S. 1194 passes the way it is written now.
This hearing is not balanced with four witnesses in favor of
the bill and only one in opposition. Since we were allowed only
one witness, we requested that a family member of a victim be
allowed to testify perhaps as a joint witness, and we were
refused.
The administration says that our noncompliance with the
International Court of Justice is causing Americans not to
receive consular notification, but the case of Ms. Gillis, the
witness before us today, does not provide that at all. Her
Libyan captors thought she was Spanish, so they did not deny
her consular rights because of U.S. action. The more likely
explanation of her denial of consular rights was that NATO was
bombing Libya and the Qaddafi regime's general intentional
failure to obey international norms.
The administration's claim that this bill is needed to
protect the rule of law is satire of that concept. Two
consecutive administrations have now done everything but comply
with the rule of law in this area. President Bush
unconstitutionally ordered a State to order foreign killers to
challenge their death sentences in light of the International
Court of Justice ruling. President Obama's Justice Department,
with the State Department, filed a brief that argued that one
of the individuals subject to the ICJ ruling should be granted
a stay of execution. It relied on the International Court of
Justice ruling which has no force under American law, policy
considerations of the type we are going to hear today, and the
unpassed bill--with emphasis upon ``unpassed bill''--that is
the subject of this hearing.
The rule of law depends on following only the law, but the
administration's brief advocated--and, sadly, four Justices
agreed--that a bill that has not satisfied the constitutional
requirements for enactment into law should be given
consideration in the law. Those Justices and everyone else
should be on notice that this bill, in fact, will not pass.
Like the Bush administration's disregard for federalism, the
Obama administration's flouting of the separation of powers has
real consequences for the rights of American citizens. The
State and Justice Departments should start adhering to the
American Constitution if they really value our credibility in
recommending that foreign countries follow the rule of law.
The administration also violates constitutional norms in
this bill. The Tenth Amendment prohibits the Federal Government
from commandeering State and local officials to perform
federally mandated functions. Section 3 of the bill would do
exactly that. The Constitution itself thus dashes any hopes
that the question of adherence to the VCCR can be settled by
this law once and for all, as the administration hopes.
Throughout our history our foreign relations have been
complicated by our Federal system. That is the price that we
pay for having a limited Government that divides power among
branches and between the Federal Government and the States for
the purpose of protecting liberty.
Professor Tribe, who is well thought of by many colleagues
on the other side of the aisle, wrote recently that sometimes
the Constitution ``directs us back to the political drawing
board.'' This appears to be one of those times.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Our first witness is Patrick Kennedy. He is a career member
of the U.S. Foreign Service, nearly 40 years of experience. He
currently serves as the Under Secretary of State for
Management. He was confirmed to that position by the Senate. As
Under Secretary, he is responsible for a wide range of issues
at the Department, including security and consular affairs. In
addition to his other roles, in 2005 he headed the transition
team for the then newly established Office of the Director of
National Intelligence. He also served as a U.S. Representative
to the U.N. for management and reform with the rank of
Ambassador. He has a bachelor of science in foreign service
from Georgetown University.
On a personal note, he was recently in St. Albans, Vermont,
where he was extremely well received in helping us with some of
our important State Department efforts up there. I am told by
the mayor of St. Albans and everybody else, Ambassador Kennedy,
you are welcome back anytime.
Please go ahead, sir.
STATEMENT OF PATRICK F. KENNEDY, UNDER SECRETARY FOR
MANAGEMENT, U.S. DEPARTMENT OF STATE, WASHINGTON, DC
Mr. Kennedy. 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, and those Americans 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
3,500 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 a part
of the story.
A U.S. servicemember 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 options, and obtained a lawyer
who worked with police to pursue the souvenir sellers. As a
result, the court accepted a plea agreement, and the
servicemember 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.
Second, 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.
Third, 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 insisting that other
countries respect theirs.
This narrowly and carefully crafted legislation facilitates
compliance with our consular notification and access
obligations while respecting our interest 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 would be happy
to answer your questions. Thank you.
[The prepared statement of Mr. Kennedy follows:]
Chairman Leahy. Thank you very much. I know in my
conversations with the Secretary she is very, very concerned
about what happens to Americans abroad if we do not fulfill our
treaty obligations here in the U.S. She feels very strongly
about that, as have past Secretaries of State.
Our next witness is Bruce Swartz. He is Deputy Assistant
Attorney General at the Department of Justice, serves as the
Department's consular for international affairs. He supervises
the Department's Office of International Affairs and Office of
Overseas Prosecutorial Development Assistance and Training. He
also oversees the International Criminal Investigative Training
Assistance Program. Prior to joining the Department, he was a
partner at Shea Gardener. He has undergraduate and law degrees
from Yale, a Henry Fellow at Trinity College at Cambridge
University. No stranger to this Committee.
Mr. Swartz, please go ahead, sir.
STATEMENT OF BRUCE C. SWARTZ, DEPUTY ASSISTANT ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Swartz. Thank you, Mr. Chairman.
Mr. Chairman, Senator Grassley, distinguished members of
the Committee, there are three points I would like to emphasize
this morning.
First, we are here today because of an undisputed and
unfulfilled treaty obligation of the United States. Forty years
ago, President Nixon transmitted to the Senate the Vienna
Convention and its optional protocol. The Senate gave unanimous
advice and consent to that convention and its protocol, and
thereafter they became part, as the Chairman noted, of the law
of the land, the supreme law of the land under the Supremacy
Clause of the United States Constitution.
Three years ago, in the Supreme Court decision authored by
Chief Justice Roberts in the Medellin v. Texas case, the
Supreme Court held that these treaties gave rise to an
undisputed international law obligation--the unfulfilled
obligation that brings us here this morning.
My second point is that the legislation before the
Committee today fulfills that obligation and does so in exactly
the manner suggested by the Supreme Court in the Medellin case.
Mr. Chairman, as you have noted, Senator Grassley, as you
have noted, President George W. Bush also sought to fulfill
this obligation of the United States, recognizing its
importance. In the Medellin case, the Supreme Court struck down
his attempt to do so by Executive memorandum, but indicated
that it is up to Congress to fulfill that obligation. That is
what this legislation does. It does so in a carefully crafted
manner, and it does so in a constitutional manner. And, Senator
Grassley I would be very glad to discuss at greater length why
the Department of Justice believes this is constitutional.
It fulfills our obligations, but it also balances against
that the need for finality and the need for justice for the
victims and families of these heinous crimes.
My third point is that this legislation is critical not
only to the protection of our citizens abroad, as Under
Secretary has suggested, but also to the national security,
counterterrorism, and law enforcement interests of the United
States. Indeed, in the Medellin case, Chief Justice Roberts
noted that the considerations for fulfilling this obligation
were plainly compelling. In an era of globalized terrorism and
crime, it is essential that we are able to have partnerships
with our overseas law enforcement counterparts if we are going
to be able to protect U.S. citizens.
Thanks to the work of the Senate, we have in place the
framework of a treaty regime that allows that kind of
cooperation. We now have extradition treaties with over 120
countries and territories, and we have mutual legal assistance
agreements for criminal assistance with approximately 80
countries. We have as well a number of important multilateral
law enforcement conventions.
In order to protect our citizens from terrorism and
transnational crime, every day we ask other countries to live
up to these treaties and to give us the reciprocal assistance
for what we do for them. But as has been noted, some of our
most important relationships are put at risk by our
noncompliance here, most obviously with regard to Mexico, a
country in which we have had unprecedented cooperation over the
past decade, and a country that has taken extraordinary steps
to meet our law enforcement priorities, including the recent
investigation of an ICE agent murdered in Mexico. But at the
same time, we have not met one of Mexico's key priorities--that
is, enforcement, fulfillment of our treaty obligation. Indeed,
during this time period two Mexican nationals have been
executed.
But I want to emphasize this is not just about Mexico. As
has been noted, many of our other closest law enforcement
partners also have nationals on death row, including the United
Kingdom, Spain, France, and others--the very countries we rely
upon to protect our citizens against terrorism and
transnational crime.
And, finally, this is not simply about that relationship,
but also about the broader compliance with the rule of law.
When the United States does not comply with a rule of law, that
has direct impact upon our law enforcement relationships.
Indeed, as the Supreme Court noticed in Medellin, that is a
compelling interest. Courts overseas look to see whether we
comply with the rule of law before they extradite foreign
nationals. We train our counterparts overseas in the rule of
law, and when we do not comply with the rule of law, those who
oppose the United States take advantage of it in their
propaganda and in their public statements.
For all of these reasons, then, we urge speedy passage of
this legislation, and we appreciate the Committee having taken
up this vital work.
Thank you. I would be pleased to answer any questions.
[The prepared statement of Mr. Swartz appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Mr. Swartz. Again, I
would say I know I have been on the phone with the State
Department Operations Center at 2, 3, 4 o'clock in the morning
to talk about Americans, Vermonters, being held overseas. And I
have also talked in some instances all the way to the head of
state of some other countries, and I have heard more than once,
``Well, we know the treatment you are asking for your U.S.
citizen. What treatment will a citizen of my country get in
your country? ''
Let me ask this of both of you. You spent your careers
advocating on the part of American interests and U.S. citizens.
Some have said the failure of the United States to satisfy its
treaty obligations has no real consequences. Secretary Kennedy,
do you want to tell me whether you would agree with that?
Mr. Kennedy. No, Mr. Chairman, I do not. I have served in
the Foreign Service for 38 years, and I happen to be married to
a Foreign Service officer who just retired who for 35 years was
a United States consul at a variety of posts in both First and
Second World Countries. Our ability to insist, to demand access
by our consular officers to American citizens in distress is a
critical element. Otherwise we cannot advocate for them, we
cannot have access to them. If I had 15 minutes to respond, I
could list example after example of American citizens who were
detained, that because we were able to demand access to them,
and continued to have access to them, we were able to address
severe needs and requirements. So this will have consequences.
I am not going to say that a country is going to excise us
from their partnership with us under the Vienna convention. But
what I am going to say, is that this depends on each Nation at
the very top, at the very leadership, pushing down through
their entire chain to the lowliest constable on the beat that
American citizens must be treated according to the precepts of
the Vienna Convention, and I think it is very important that we
continue that.
Chairman Leahy. Mr. Swartz, you deal with law enforcement
all over the world. Do you agree with what Mr. Kennedy said?
Mr. Swartz. Absolutely, Mr. Chairman. For the past 10
years, I have been responsible for our international relations
at the Department of Justice in the criminal justice and
counterterrorism context, and I cannot emphasize strongly
enough how important it is for the United States to be able to
say that it is meeting its treaty obligations when we ask other
countries to do the same.
Chairman Leahy. Well, you have heard some have said that
this legislation raises constitutional questions regarding
congressional authority, regarding the application of the Tenth
Amendment and so on. The Department of Justice has reviewed
this legislation. We have a letter that supports it. Do you
believe it raises any constitutional concerns?
Mr. Swartz. Mr. Chairman, we do not. As you say, this has
been carefully reviewed by the Department of Justice, including
the Office of Legal Counsel. And if I may, the legislation in
the first instance is exactly what was invited by Chief Justice
Roberts in his opinion for the Court in the Medellin case. So
those who would suggest that it is unconstitutional I think
first must confront that the Court suggested that the way to
meet our legal obligation was precisely through legislation of
this nature.
Chairman Leahy. Well, what about the concern this would
flood the courts with new habeas claims or create a free-
standing right of foreign nationals accused of murder to sue in
Federal court? Has the Department looked at this, its effect on
death penalty and habeas corpus and so forth?
Mr. Swartz. We have, Mr. Chairman. As prosecutors
ourselves, of course, the last thing that we would seek to do
is to make it easier for those who have committed crimes, these
kinds of horrific crimes, to escape punishment. That is not the
intent of this legislation. It will not flood the courts. It
deals with an extremely small and limited group of cases and
the retrospective aspect of it to fulfill our treaty
obligation. And as to the prospective aspect of it, in fact,
what it will do, we believe, is eliminate the future litigation
of this nature by ensuring that consular notification is given,
and it has a number of techniques to assure that, but none that
extend beyond the responsibilities already present under the
Vienna Convention.
Chairman Leahy. My last question would be first to you, Mr.
Swartz. Do you see this would be any burden on law enforcement?
Mr. Swartz. Mr. Chairman, we do not. In fact, this is what
law enforcement has been doing for 40 years. This legislation
is designed to reinforce the practice, the practice that was
adopted as standard operating procedure by police officers and
officers around the country at the State, local, and Federal
levels after the Vienna Convention came into place. It provides
additional backstops, but, again, nothing not already
contemplated by our obligations under the Vienna Convention. It
will not make it more difficult.
Chairman Leahy. Mr. Kennedy, does it complicate our
immigration enforcement?
Mr. Kennedy. No, sir, I do not believe so. We have engaged
at the State Department, with the cooperation of the Department
of Justice, in an extensive educational campaign, distributing
informational material to State and local and municipal law
enforcement officers, including mailing out 1 million copies of
a very, very small card that clearly explains to the officer on
the beat exactly what he or she should do to uphold our
obligations under the Vienna Convention. It is very simple, it
is very straightforward, and I do not believe it will in any
way compromise our law enforcement efforts, sir.
Chairman Leahy. And you know I am going to ask you for a
copy of that afterward.
Mr. Kennedy. I will be glad to make it available to every
member of the Committee, sir.
Chairman Leahy. Thank you.
Senator Grassley.
Senator Grassley. Thank you, Mr. Chairman.
As we were visiting before the meeting started, I said I
was skeptical, and my questions will probably reflect that
skepticism. But, first of all, let me state a fact before I ask
my first question, and that is: In regard to the Department of
Justice under the Bush administration, they clearly thought
that he could issue his Executive order constitutionally, and,
quite obviously, they were wrong.
Mr. Swartz, the Justice Department filed an amicus curiae
brief in the Leal case in the Supreme Court. The State
Department's legal adviser was on that brief as well. The brief
argued that Mr. Leal Garcia should receive a stay of execution
based upon three points: the International Court of Justice
ruling, which has no affect in American domestic law; policy
reasons of the type that we are speaking about here on this
bill; and the administration's strong support for the bill that
is the subject of this hearing. An unpassed bill has no legal
authority. Congress has the sole power to legislate. Congress
has not legislated in this area. And a bill that has been
introduced only in one House and is not passed, whether or not
strongly supported by the administration, has no legal effect.
Last week, in your briefing for the Committee staff, you
said that the administration's Leal brief showed ``respect for
the congressional process.'' How does asking the Court to rule
in reliance on an unpassed bill show ``respect for the
congressional process'' ?
Mr. Swartz. Senator Grassley, let me begin by saying first
that we regret that our action in this regard may have been
interpreted as anything other than respect for Congress
because, as I said in the staff briefing, that is precisely
what it was intended to achieve.
In the Medellin case, as the Senator knows, the Supreme
Court pointed out that the administration had not made any
statement about legislation that had been introduced at that
point and its possible effect on the execution of Mr. Medellin.
In this context, Senator, the decision was made because this
legislation was before Congress, in order to permit Congress to
act and to prevent what otherwise would have been the
irrevocable harm that once Mr. Leal was executed, nothing this
Congress did could redeem that fact or change that fact, the
decision was made that it was appropriate to seek a stay. And
in this regard, Senator, I would also note that this is not
different really from what has been done in other contexts. As
we pointed out in our brief to Supreme Court, in the amicus
brief, the Supreme Court had stayed--Chief Justice Kennedy
stayed, for instance, in the Mt. Soledad case a matter pending
a possible change in law. The Supreme Court routinely stays
matters pending its decisions where there may be a possible
change of law. And, of course, the Supreme Court in a number of
instances has stayed its mandate, as in, for instance, the
Buckley v. Valeo case in order to give Congress a chance to
act.
So the intention was precisely to allow Congress to act in
light of the Supreme Court having invited Congress to do so in
the Medellin decision. But, Senator, I would be glad also to
supplement that, if you would like, in a written answer.
Senator Grassley. Yes, I would, but I still think it gets
back to something very basic, and that is that a bill that has
not passed is not the law under the Constitution, and only
Congress can enact such legislation. And I do not think it
shows respect for the congressional process for citing that the
Court ought to base their decision based on something that
Congress has not passed, because cases in controversy are
brought under law or under the Constitution.
[The information referred to appears as a submission for
the record.]
Senator Grassley. I have another question. Could either of
you cite an instance in which an American citizen has been
denied consular access because a foreign government was unhappy
about our failure to follow the Avena ruling?
Mr. Kennedy. Senator, the Avena ruling, as I said, is a
relatively recent ruling, and as I noted in response to the
Chairman's question, the process is moving all the time. We
have millions of American citizens traveling. It is imperative,
in order to keep the safety net, to keep the consular access,
that foreign governments at the highest levels continue to
drill down through all the layers of their law enforcement and
judicial systems to keep saying for example, that we, the
government of Xanadu, continue to support this. This will be
something that I believe will dissipate. When the United States
fails to provide consular access to nationals of any country,
the impetus for that country to continue to support the Vienna
Convention dissipates, and we will have American citizens in
tragic circumstances who are not able to avail themselves of
our consular assistance.
Mr. Swartz. Senator, if I might add?
Senator Grassley. Go ahead. First of all, I interpret that
his answer to my question is no, there is not an example that
he can give me. Go ahead, sir.
Mr. Swartz. Senator, in the criminal justice context, this
is not simply a hypothetical. You have before you the statement
of the Ambassador of Mexico to the United States, who has noted
the great strain that this has placed on our relationship. We
have heard from other countries in the law enforcement context
whose nationals are on death row, including the United Kingdom.
And I can assure you, having dealt with this issue for the
entire period of the Avena decision, that other countries ask
us why they should take and make a priority our cases, our
concerns, if we are not going to respond to their priorities.
And this is a priority for a number of our key law enforcement
partners.
So this is not a hypothetical concern about whether it will
affect our relationships. It does affect our relationships. And
it affects them in ways that we cannot always control, because
even if it is the executive that may be willing in another
country to cooperate with us, courts are influenced by this as
well. Courts overseas look to see whether we comply with the
rule of law.
Senator Grassley. We have got to move on to another
question, but let me just say this: If Mexico is so upset with
our noncompliance with this International Court ruling, how do
you explain your statement that our cooperation with Mexico is
at an all-time high. And you did state that. Go ahead, Mr.
Chairman. I am done.
Mr. Swartz. Senator, I did state that, and, in fact that is
the case. But it is also the case at the same time that when we
continue to try and build upon that relationship, this is an
obstacle. We can do more, and we should be doing more with
Mexico. But when we are not responsive to their concerns, that
has effects, and it has effects on the public in Mexico, and
that affects things as well. It affects witnesses willing to
cooperate in our matters. It affects the Mexican Congress, and
it affects the Mexican Congress' approach toward their
executive dealing with us on law enforcement matters.
Chairman Leahy. You know, it is interesting. We have talked
about the most recent action of the Supreme Court. I recall
during Chief Justice Roberts' confirmation hearing, he was
asked about the rule of five, that is, where four Justices have
voted for a stay, it has been customary that the Chief or
somebody else would make the fifth one. And he spoke, and I
realize under oath, but that he thought that--basically, he
thought that was a pretty good rule. I am sorry that his
opinion after he had been confirmed seemed to have change from
when he was seeking confirmation.
I will yield to Senator Franken, and we will then go to
Senator Graham. Senator Blumenthal has offered to take the
Chair. As you know, there are a lot of discussions on a
different subject going on here on the Hill, and I am going to
be going back and forth on that. But I appreciate the
testimony, and I would say--and I wanted Senator Grassley to
hear this--we had an interparliamentary group meeting here in
Washington this weekend, and we had a number of
parliamentarians from that country raise the question about are
we going to play by the same rules that everybody else is
expected to play by.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Mr. Swartz and Mr. Kennedy, I wanted to follow up on the
last part of your discussion with the Ranking Member and talk
about our relationship with Mexico. We obviously share a long
border with Mexico, and I understand it is the most frequently
crossed international border in the world. We work closely with
Mexican law enforcement to make sure the border is properly
policed, and we rely on good will with Mexican authorities to
prevent violence and drug trafficking across the border.
This question goes to either of you. Can you discuss in
practical terms how our relationship with Mexico is hurt by our
noncompliance with the Vienna Convention? And how will this
potentially impact our ability to prevent and solve cross-
border crimes?
Mr. Swartz. Senator, thank you. I will begin and then turn
to the Under Secretary.
As you suggest, this noncompliance has practical
consequences. When we go to a foreign country, Mexico, for
instance, and ask them to investigate a crime, we do it both
under a treat basis, if a treaty exists, but also on an
informal basis, on a basis of reciprocity. And that reciprocity
is key to our law enforcement relationships.
To take one recent example, as I mentioned in my opening
statement, there was the tragic murder of an ICE agent in
Mexico earlier this year. We asked Mexico to make that a
priority in terms of working with us to investigate that crime,
and they did. They recognized that as a priority for us. But at
the same time, Mexican officials asked me and asked the
Attorney General and asked others--I know they have asked
Congress--why it is we are unwilling to meet our obligations
and make a priority what they seek to accomplish in this
context.
That has consequences. It has consequences because, as the
Mexican ambassador has pointed out in his letter, which has
been part of the record in the Medellin case, his letter to
Secretary Clinton, that causes pressure from the Mexican
public; it causes pressure from the Mexican Congress who ask
why should their law enforcement agents make our cases a
priority if we are unwilling to make theirs a priority.
Senator Franken. Thank you.
Mr. Kennedy.
Mr. Kennedy. If I could add, Senator, Mexico has two
statutes in their code that say that if a foreign national is
detained, they must have access to their consul. On the other
hand, the Mexicans also have a Federal system like we do, and
so it is imperative that we at the national level demonstrate
the kind of leadership of insisting that all elements of our
Government--Federal, State, and local--adhere to the consular
notification requirement so the Mexican Government and other
governments as well will continue to drill down through all the
levels of their system to ensure that everyone is notified that
this is their obligation to ensure U.S. consular access. And I
could give you numerous examples of American citizens who have
suffered, sometimes physically, sometimes by other means,
because a nation failed to provide consular access to the
United States in a timely fashion.
Senator Franken. We have, as I understand it, more
Americans incarcerated in Mexico than in any other country.
Almost 1,000 citizens were incarcerated just last year. Does
our failure to provide consular notification to Mexican
nationals threaten the safety of these Americans in your
opinion?
Mr. Kennedy. I think it does, Senator. There are two parts
to consular notification and consular access. The first is when
an individual is initially detained, during the initial
encounter with local law enforcement. The second is if the
individual is convicted of a crime because there is the right
of continual consular access. And we have had cases like this;
for example, in Mexico, for an individual, an American citizen
who was thought by one gang to be a member of a rival gang, we
were able to intervene because we were aware of it and had
consular access, and we were able to get that individual moved
from one prison to another so that the individual would not
become the victim of prison violence. And I think in doing that
we literally saved that individual's life.
Senator Franken. That is the positive side. Is there a
potential downside? I see that my time is up, so I will submit
any questions I am not able to ask.
Thank you, Mr. Chairman.
Senator Blumenthal [Presiding.] Thank you, Senator Franken.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
I would like to introduce into the record a letter I
received from Secretary Clinton about this matter.
Senator Blumenthal. Without objection.
[The letter appears as a submission for the record.]
Senator Graham. She indicated that last year 3,500
Americans were detained abroad and that we had 9,500 consular
visits. One thing I would like both of you to provide, if you
could, could you call the Department of Defense and see how
many American servicemembers have been detained in foreign
countries and we were able to provide consular access over the
last 5 years? A lot of times it is through the Status of Forces
Agreement. During my time as a judge advocate, particularly
overseas, I had many cases in Turkey where people would be
detained for various crimes, American military personnel, and
we jealously guarded our right to go into that prison and, you
know, consult with our servicemember and make sure they were
being well treated. And I do not want to do anything to ever
jeopardize that in the future.
Now, whether or not this bill is the right answer, I do not
know, and I look forward to hearing from Senator Cornyn,
Senator Grassley, and others, but I would hope to come up with
a bipartisan solution. Just to make sure I understand the
requirement here, our Supreme Court has said that the memo from
President Bush is not enough, that the Congress actually needs
to enact the terms of the treat. Is that correct?
Mr. Swartz. Senator Graham, that is correct. It is up to
Congress, the Court made clear in Medellin, to implement the
obligation under the Vienna Convention.
Senator Graham. So I just hope that this Committee, made up
of very smart folks, can find a way to honor that obligation,
because I just want to be on the record as indicating the need.
Not only were there 3,500 people detained abroad last year that
we provided assistance to, from my time in the military there
is a real need to protect our servicemembers. The CIA case
involving the gentleman that was detained in Pakistan is a
classic example of a situation where we were very appreciative
of having access to an American citizen detained in a foreign
country, which was a political football for the government in
question.
So I just do believe that the Vienna Convention, it was a
smart thing to have entered into over 40 years ago, and we need
to make sure it is viable today. So I would like to introduce
the Secretary of State's letter to me talking about the need
for this legislation in terms of real-world events. We have had
a CIA agent that was in foreign custody. We have had several
cases. In South Carolina the most notable was a Pastor Miles of
Conway, South Carolina, who did mission trips to Russia. He was
going all over Russia to try to establish Christian churches,
and in 2008 he was detained and sentenced to 3 years in jail
because he had 20 rounds of hunting rifle ammunition in his
bag. And he was going to deliver this ammunition as a gift to a
fellow pastor in Russia who enjoyed hunting. And this was a
major problem in South Carolina and for the country, and I just
appreciated all the help that we received from the State
Department, and we did have access to Pastor Miles. He was
visited regularly by our consular embassy office in Moscow, and
I would like to introduce in the record letters I wrote to the
Russian Government and media articles. And I would just say to
both of you, in that case it was a godsend to be able to go to
the family in South Carolina and say, ``We have legal avenues.
I promise you that we are going to make sure that your loved
one is well taken care of and that we will exercise all of our
rights to make sure he is being well taken care of.''
If we do not pass this legislation, is there anything on
the horizon near in real terms or are there any cases out there
that you particularly worry about going badly for us?
Mr. Swartz. Senator Graham, if I may, I will turn to Under
Secretary Kennedy with regard to the Department of Defense's
support for this legislation for the reasons that you have
mentioned.
With regard to cases going badly for us, I think there are
really two categories. The first would be further executions of
individuals covered by the Avena judgment, those to whom the
Court in Medellin held to have a treaty obligation. We
understand that there are possible executions scheduled, if not
this year perhaps early in 2012, and that will again create a
crisis in our relationship with the countries involved. And I
stress again this is not simply Mexico. The United Kingdom has
a national who is on death row and subject to the same
provisions.
The second category would be cases in which we are asking
other countries to assist us, and while not wanting to go into
particulars, we do ask really every day that countries take
particular steps to make our cases a priority. And I can state
from personal experience that is very difficult when the
country in question responds by saying, ``Well, will you be
able to meet your obligations in this and other regards? ''
Senator Graham. Thank you.
Mr. Kennedy. If I could add, Senator.
Senator Graham. Very briefly.
Mr. Kennedy. We will certainly get additional information
from the Department of Defense, but you are entirely correct.
DOD directives specifically instruct facility and base
commanders to notify the United States embassy or consulate and
to make sure that we also are ready to intervene, which we do
regularly.
If I might, in a tragic example, recently there was a
veteran who ran afoul of the law overseas, suffering from
mental illness. He was put into prison. He was deteriorating
quickly. Because of our excellent relationships, we were
notified of that case. We were able to work with the prison,
and we were able to get him the psychiatric help he needed and
have him moved into the appropriate place in the foreign prison
system. This is exactly what I refer to as ``the safety net''
of the good relationships we have with countries that get us
the consular notification so we are able to assist American
citizens in real distress.
Senator Graham. I know my time has expired, but I would
like to--I think there are some concerns about this
legislation. Senator Cornyn is a very smart guy, and I would
like to work with him to see if we can find some bipartisan
solution and come up with a legislative proposal that will
bring us all together. I again ask unanimous consent to insert
into the record the documents I just mentioned.
Senator Blumenthal. Without objection.
[The information referred to appears as a submission for
the record.]
Senator Graham. Thank you all.
Senator Blumenthal. Thank you, Senator Graham.
I have just a couple of questions in conclusion with this
panel to just pursue the line of questioning that Senator
Graham raised with regard to the Department of Defense. My
understanding is that DOD supports this legislation.
Mr. Kennedy. They do, Senator, and their own DOD
directive--DOD Directive 5525.1--instructs base commanders,
facilities commanders, to work with the American embassies and
consulates to ensure that their servicemen and -women overseas
receive the consular protection and consular access that they
need. And we do that all the time.
Senator Blumenthal. In fact, the largest group of United
States citizens serving abroad or living abroad are military
personnel or military contractors or individuals, citizens of
the United States somehow serving in the capacity of the
Department of Defense. Is that correct?
Mr. Kennedy. Yes, sir. It is the largest single group,
absolutely.
Senator Blumenthal. They may not be the ones who most
commonly need this kind of service, but they are the largest
group that potentially may make use of it.
Mr. Kennedy. That is right, and our consular officers
assist DOD personnel. I gave the example of the veteran. I gave
an earlier example of another U.S. servicemember who was
arrested at a foreign airport for just carrying a small amount
of ivory. He was facing a multi-decade prison sentence. The
United States consul intervened. We were able to get him a
local attorney, and he walked out of there and was able to
return to his unit.
Senator Blumenthal. Let me ask you, Secretary Kennedy,
because for literally decades as a State Attorney General and
now as a U.S. Senator, I received calls from parents of young
people in exactly this situation. Obviously ``concerned'' would
be to understate their emotional reaction to the news that one
of their children or one of their relatives has been detained
abroad.
What would you advise that parent to do in that situation?
Mr. Kennedy. If they believe that their son or daughter has
been detained, they should immediately contact the nearest
American embassy or consulate. If the parents happen to be in
the United States, we have a hotline that is answered 24 hours
a day, 7 days a week, 365 days a year. We have teams of
officers from our Bureau of Consular Affairs who will
immediately begin working on this case, and contact the
relevant embassy or consulate where the child is believed to
be. We will then contact the local police authorities, and we
will get in, and we will get to that child as fast as we can.
So what they need to do is tell us.
But it is absolutely important for consular notification--
and that is why we think this legislation is so important. In
the time while the parent is trying to figure out, well, did
Sally not call just because she is having a good time or is
Sally in trouble, if we get what we need under the Vienna
Convention from foreign nations and give them that same
reciprocal right, as soon as that child is detained by foreign
law enforcement, they are obligated to notify the American
consulate, and then the American consul will begin to act
immediately to assist that child.
Senator Blumenthal. So the great advantage of this
legislation is it supports a system that in effect provides
that notification abroad that should be reassuring to countless
parents and relatives and loved ones who are worried that that
child or loved one is out there alone and isolated and the
consulate can come to his or her aid.
Mr. Kennedy. Absolutely. Senator, 103 million Americans
have passports, and there were 60 million foreign trips last
year, and that is a lot of Americans and a lot of potential for
encounters with local law enforcement. This legislation would
confirm and put into place a system in which we can say to
every nation in the world that we honor our commitments under
the Vienna Convention, and you must honor yours by giving us
immediate notification when an American citizen is detained.
Senator Blumenthal. And we are going to hear in the next
panel from Clare Gillis, who was detained by the Libyan
Government abroad. Is it your opinion that this legislation
would have supported and aided the process by which she was
eventually freed--obviously not through a United States consul.
It was through the Turkish and Hungarian governments, but the
principle that applies here also would apply there.
Mr. Kennedy. The principle is absolutely correct, Senator.
And if I might add, though, it is because of our relationships
under the Vienna Convention. When the United States withdrew
its diplomatic and consular personnel from Libya, we appointed
what is called a protecting power, and the consular officers of
that Nation assume and can invoke the rights under the Vienna
Convention, so they can go in and say, ``I am acting on behalf
of the American consul according to law, and you must give me
the same access to detained American citizens as if I was the
United States consul.''
Senator Blumenthal. Thank you. My time has expired, and I
have some additional questions that I would like to submit in
writing, particularly focusing on, General Swartz, the upcoming
death penalty cases that may involve executions in the very
near future so that we have some sense of the immediacy of this
issue that may arise again, and also the numbers of cases that
might be affected, even if they are not death cases, the range
of cases that might be affected in our State courts, if it is
possible to provide that kind of information.
Mr. Swartz. We will be glad to provide that information,
Senator.
[The information referred to appears as a submission for
the record.]
Senator Blumenthal. Thank you very much. Thank you to both
of you. Your testimony has been excellent and very, very
helpful to the Committee, and we appreciate your good work on
this issue and on so many others. So thank you for being here
today.
We are going to go to the next panel, take a couple of
minutes so that they can come forward, if you would, and we
will proceed.
[Pause.]
Senator Blumenthal. Good morning again. I am very pleased
to introduce our next panel, a very distinguished panel, and I
will go through the introductions for all three, and then we
can proceed your right to left, my left to right.
Our first witness on the next panel will be John Bellinger.
He is a partner in the international and national security
practice of Arnold & Porter. He advises governments and
domestic and foreign companies on a range of international law,
United States national security issues. Prior to his work at
Arnold & Porter, Mr. Bellinger served as legal adviser for the
Department of State under Secretary of State Condoleezza Rice
from 2005 to 2009. While he was at the State Department, he
directed almost 200 staff lawyers who advised the Secretary,
Ambassadors, and others at the Department on legal matters
relating to foreign policy. Prior to joining the Department of
State, he was also senior associate counsel at the White House
under President George W. Bush, where he served as legal
adviser to the National Security Council. Mr. Bellinger
received his undergraduate degree from Princeton University,
his law degree from Harvard Law School, and a master's degree
in foreign affairs from the University of Virginia.
I am particularly pleased to welcome Clare Gillis, who is a
freelance journalist who was captured by pro-Qaddafi forces in
Libya this past April. She is a native of New Haven,
Connecticut, and holds a Ph.D. from Harvard University. Ms.
Gillis was working for The Atlantic and USA Today when she was
taken prisoner along with another American journalist and a
Spanish journalist and held for nearly a month and a half.
During her captivity Ms. Gillis was subjected to multiple
interrogations and forced to stand trial with no legal
representation. Through the efforts of the Department of State,
working in conjunction with Turkish and Hungarian diplomats who
represented the United States' interests in Libya, Ms. Gillis
was finally released on May 18th. We welcome you today from
Connecticut and are very glad you are here.
David Rivkin is a partner in the office of Baker Hostetler
and co-chairs the firms appellate and major motions practice.
He is also co-chairman of the Center for Law and
Counterterrorism at the Foundation for Defense of Democracy and
a contributing editor to the National Review. Before returning
to the private sector in 1993, Mr. Rivkin worked in both the
Reagan and George H.W. Bush administrations in the White House
Counsel's Office and the Department of Justice. Mr. Rivkin
received his undergraduate degree and master's degree from
Georgetown University and his law degree from Columbia
University Law School.
Again, thank you and welcome to all three of you, and we
will begin with Mr. Bellinger. Thank you.
STATEMENT OF JOHN B. BELLINGER III, PARTNER, ARNOLD & PORTER
LLP, AND ADJUNCT SENIOR FELLOW IN INTERNATIONAL AND NATIONAL
SECURITY LAW, COUNCIL ON FOREIGN RELATIONS, WASHINGTON, DC
Mr. Bellinger. Thank you, Mr. Chairman and Ranking Member
Grassley. It is a privilege to be back before the Committee
today. I was deeply involved in the issues that are the subject
of today's hearing while I was serving as the legal adviser for
the State Department and previously at the National Security
Council during the Bush administration.
I would like to review this morning why the Bush
administration, which has never been accused of an
overabundance of enthusiasm for international courts,
nevertheless decided to work so hard to comply with the
decision of the International Court of Justice in the Avena
case.
The administration did so not because of any lofty
commitment to international tribunals or international law, but
because Avena is a binding legal obligation and complying with
it is important to protect Americans who travel in other
countries.
When I moved from the White House to the State Department
with Secretary Rice in January 2005, the first international
legal challenge that we confronted was how to comply with the
Avena decision. We recognized that the 51 Mexican nationals
covered by the decision had been convicted of horrific murders
and that the families of the victims had waited for many years
for closure.
Moreover, the U.S. disagreed with the ICJ's decision, which
had interpreted the Vienna Convention in ways that we had not
anticipated when the U.S. joined the treaty. Nevertheless, once
the ruling was issued, it was absolutely clear to the Bush
administration that as a matter of treaty law the U.S. was
required to comply with it.
Under Article 94 of the U.N. Charter, which was approved by
the Senate in 1945, ``Each member of the United Nations
undertakes to comply with the decision of the ICJ in any case
in which it is a party.'' With the consent of the Senate, the
United States had given our binding legal obligation to other
countries that we would comply with the rulings of the ICJ.
Now, contrary to some public perceptions that it was not
committed to our international law obligations, the Bush
administration took this obligation very seriously. In
particular, Secretary Rice believed that it was vitally
important for the U.S. to make every effort to vindicate the
right of consular notice required by the Vienna Convention in
order to ensure that Americans who are detained in foreign
countries are notified of their rights.
President Bush decided that the most effective way to
comply with the Avena decision would be to issue an order
directing State courts to review the Mexican cases. This
decision could not have been very easy for the President,
especially since 15 of the Mexicans had committed murders in
his home State of Texas. The President was a former Governor of
Texas, a staunch believer in States' rights, and a supporter of
the death penalty. Most Texans opposed giving any further
appeals to Mexicans who had been convicted of rape and murder.
In March 2008, the Supreme Court ruled against the
President, holding that neither the Avena decision standing
alone nor the President's February 2005 order constituted
directly enforceable Federal law. Nonetheless, the Supreme
Court unanimously concluded that the Avena decision is a
binding international law obligation. Chief Justice Roberts
specifically stated, ``No one disputes that the Avena decision
constitutes an international law obligation on the part of the
United States.'' Moreover, the Court acknowledged that the
United States has a ``plainly compelling'' interest in ensuring
the reciprocal observance of the Vienna Convention.
Today I support passage of Senate bill 1194, which would
enable the U.S. to comply with the Avena decision. As a Nation
committed to the rule of law, our Government must take its
international law obligations seriously. Under Article VI of
the Constitution, all treaties made shall be the supreme law of
the land.
I understand that there are many principles that others
claim to constitute customary international law that the U.S.
does not accept. But the Avena decision does not fall into that
category. The U.S. has a clear treaty-based legal obligation to
comply with the Avena decision even if we do not agree with it.
The Senate accepted this obligation when it gave its advice and
consent to the U.N. Charter.
Complying with the Avena decision is especially important
because it involves the vital right of consular notification
required by the Vienna Convention. This right is not a favor
that we give to foreigners because we believe in world
government. This right is vital for Americans who travel to
foreign countries for business or pleasure and who may be
arrested or detained, sometimes on trumped-up charges.
Mr. Chairman, if a constituent of any Member of Congress is
detained in a foreign country, whether it is Mexico or Libya, I
am sure that member would want that constituent to be told of
his right to have a State Department official notified; and if
a foreign country fails to provide notice, Congress will expect
the State Department to complain vigorously to the foreign
government for violating its treaty obligations.
It makes it extremely difficult for the State Department to
insist that other countries honor their treaty obligations to
us if we do not comply with our treaty obligations to them.
In closing, to comply with the clear international legal
obligation and ensure reciprocal observance of the Vienna
Convention, an interest that our Supreme Court found plainly
compelling, I urge this Committee to approve and the Senate and
Congress to pass the Consular Notification Compliance Act.
Thank you.
[The prepared statement of Mr. Bellinger appears as a
submission for the record.]
Senator Blumenthal. Thank you, Mr. Bellinger.
And we will turn now to Ms. Gillis. Thank you.
STATEMENT OF CLARE GILLIS, FREELANCE JOURNALIST, NEW HAVEN,
CONNECTICUT
Ms. Gillis. Thank you, Mr. Chairman. I am pleased to
testify in support of this legislation today--and Ranking
Member Grassley.
Senator Grassley, I do need to clarify something that you
said earlier about my case, that I was taken to be a Spanish
citizen. This was true for about 1 minute during one of my
interrogations, but we promptly figured it out, and for the
rest of the 6\1/2\ weeks they knew that I was an American. So
if you want to ask me a question about that later, I will be
happy to continue clarifying if you need it.
I was working as a freelance journalist in eastern Libya,
reporting for The Atlantic and USA Today, among other
publications, when I learned what it was like to be a prisoner.
On April 5, 2011, I was with three other journalists at the
front line when we came under fire from Qaddafi's troops. One
of our party, the South African Anton Hammerl, received what we
believe were fatal wounds, and the rest of us were captured.
The soldiers punched us and hit us with the butts of their
rifles; they tied our hands behind our backs and threw us in
the back of their pickup truck. We were blindfolded and
interrogated several times. One of my sessions lasted for 6
hours. We went before prosecutors and judges with only a
translator to assist us. Our requests for a lawyer were not
honored. Our captivity lasted ultimately for 44 days, when we
were finally freed, with the stipulation that if we were to be
caught again by Qaddafi's forces, we would have to spend a year
in prison.
As we lay awake at night, we listened to NATO planes and
the bombs they dropped, occasionally even feeling the building
that we were staying in shake with their impact. We knew that
we were being detained in a military facility and worried that
the bombs could even be targeting our building. We wondered if
anyone knew where we were or even that we were alive. Our guilt
at what we were putting our families through back home is
indescribable and was tempered only by fear. We did not know if
the Libyans were even acknowledging publicly that they were
holding us. And essentially since we had witnessed the murder
of a civilian, we thought we might just be at the mercy of our
captors.
We also wondered quite frequently who could possibly secure
our release. We were two U.S. citizens and one Spanish. The
U.S. embassy in Tripoli closed up shop on February 25th,
actually the day that I crossed over the border from Egypt in
order to enter the rebel-controlled eastern part of the
country. Based on the example of the New York Times team which
had been captured in circumstances very similar to ours a month
earlier, and whose release was eventually secured by the
Turkish embassy, who was acting as the protecting power for
U.S. citizens in Libya at that time, it seemed that the Turkish
embassy would be the ones to step in.
Indeed, when I was finally allowed a phone call, after
being held for 16 days--and this is something that the State
Department worked very, very hard to get me to get access to
the phone--my mother asked me if the Turks had visited me. I
had had no idea that they were even trying to visit me. We had
no communication with anybody during this time. We were simply
held in a cell. And it was tremendously reassuring to hear my
mother tell me that the State Department was putting great
efforts into my case even though it was no longer possible for
them to be on the ground in Libya.
I also learned that our media outlets were working more
than full-time to publicize our case, and this was especially
gratifying because as a freelancer, I had assumed I would be
more or less on my own. When we were eventually transferred to
a private guesthouse and had access to television, we watched
with dismay as the news was broadcast that the Turkish Embassy
in Tripoli had also closed. We wondered: Who is looking after
our case now?
After 35 days we received a surprise visit: the Hungarian
ambassador and consul to Libya and the Spanish deputy
Ambassador came to see us. Upon the departure of the Turks, the
U.S. State Department enlisted the Hungarians as the protective
power for U.S. citizens in Libya. Within several days, they
managed to secure access to visit us.
Consular access is vital for people in our situation. They
were able to get a sense of what we looked like, how we acted,
if we were being treated well; and we certainly hoped, though
we could not know for sure, that they would be able to inform
NATO pilots of our location so that we would not suffer
friendly fire.
When we went before the judge and got our formal release,
we still had no permission to be in the country. The charges we
were being held on were illegal entry since we had entered
through the rebel-controlled eastern border and did not have
Tripoli-issued visas, and that we were reporting without
permission from Tripoli. And the big problem was we still had
to get out. It is about a 2-hour drive between Tripoli and the
Tunisian border, and we did not know who would take over
security for us.
The Hungarians managed to get our passports back from the
Libyans, and they drove us through the dozen or so checkpoints
to the Tunisian border. There they waited with us for 3\1/2\
hours as border officials struggled with paperwork to let us
pass. Without consular access, I do not know when we would have
been released or who would have negotiated the delicate process
of actually getting us to that border.
If the U.S. continues to ignore its obligations under the
Vienna Convention on Consular Relations, that makes it easier
for foreign governments to ignore their obligations to
imprisoned American citizens abroad. If we expect other nations
to take our concern for human rights seriously, we should honor
the terms of a treaty we have already signed.
Qaddafi's Libya honored its obligations to me under the
Vienna Convention, and I think and I hope that we can at least
do as well as they did.
Thank you.
[The prepared statement of Ms. Gillis appears as a
submission for the record.]
Senator Blumenthal. Thank you very much, Ms. Gillis.
Mr. Rivkin.
STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, BAKER HOSTETLER
LLP, WASHINGTON, DC
Mr. Rivkin. Thank you, Senator Blumenthal, Senator
Grassley. While I appreciate an opportunity to appear before
you today, I am unable to support this legislation.
S. 1194, despite its laudable goal of seeking to enhance
the U.S. compliance with the Vienna Convention, raises
significant constitutional concerns by improperly intruding in
the sovereign domain of the States. Accordingly, I believe that
an entirely different legislative framework that is compliant
with the U.S. Constitution is needed.
To begin with, I fundamentally disagree with the notion
that we heard described in some detail this morning that a
failure to enact S. 1194 would somehow cause other nations to
impair the rights of Americans by causing their requests--and I
emphasize that we are talking about their stated requests--for
consular access to go unheeded. Indeed, we know that foreign
nations by and large honor these requests. While there have
been some failures, they have not been frequent and have been
primarily perpetrated by governments which, shall we say, do
not comply with their international or domestic law
obligations.
These violations are particularly likely to occur, as was
the case with Ms. Gillis, when the foreign government involved
has embarked on a path of confrontation with the United States.
And I would submit to you that in such an extreme situation, it
would be utterly unrealistic to expect that the passage of S.
1194, or for that matter, if any other legislation in the U.S.
Congress would enhance foreign compliance with the Vienna
Convention.
Significantly, there is no indication, public or private,
that any country intends to reverse or diminish its Vienna
Convention compliance policy as a result of having U.S. law
stay the way it is in place, which provides no judicial remedy
for failure to inform a foreign national of his or her consular
rights in a situation when it was not clear at the outset that
the individual involved was a foreign national.
Frankly speaking, I am concerned, though, that by acting as
if the status quo is an intolerable affront to other nations,
and by claiming that a failure to enact S. 1194 is a major
breach by the United States of its international law
obligations, we may actually increase the prospects that
foreign nations hostile to the United States may use this issue
as an excuse to stop complying with their Vienna Convention
obligations as they apply to American citizens.
Now, more importantly, and quite aside from policy
considerations, although I am not prepared to say flatly that
S. 1194 is unconstitutional in its entirety, it raises serious
constitutional problems that weigh heavily against enactment.
In our Federal system, the Federal Government is limited to
certain enumerated powers, while the States retain general
police powers. This dual sovereignty is the key feature of our
constitutional architecture and the key element in protecting
individual liberty. It has been recognized as such in centuries
of case law.
The treaty power should not be, and cannot be, an exception
to these fundamental constitutional principles of dual
sovereignty and separation of powers.
Significantly, combating crime and providing punishments
lie at the very core of the States' police power and very much
at the periphery of the Federal Government's proper domain. If
a statute like S. 1194 can be constitutionally enacted and
upheld, there would be no remaining area--be it education,
family law, inheritance, or professional licensing issues--in
which the States would retain their autonomy, particularly
given the range of issues that can be addressed by
international conventions these days. I certainly can discern
no viable judicially enforceable limiting principle that would
ensure that such an outcome does not occur.
The bill also presses into service State officials and,
through them, seeks to carry out Federal obligations. For
example, when a State arrests a foreign national for a death-
eligible offense, a State officer would be required to inform
the foreign national of his consular rights.
All of these are worthwhile things, I want to emphasize,
but they are utterly beyond the power of the Federal Government
to accomplish by commandeering State officials.
This is not just a matter of fundamental principles. These
limitations are plain and well described in Supreme Court case
law, including such seminal cases as New York v. United States
and Printz v. United States.
In my view, bending these rules and principles of
federalism is not just a bad policy decision, but would
compromise the liberty of all Americans. We know that dual
sovereignty itself goes to more than just protecting State
rights. It is a key way of protecting individual liberty, a
point made with particular vigor by the Supreme Court's in a
unanimous decision styled Bond v. United States during the just
completed term.
With this in mind, I would submit that S. 1194 is
unnecessary to protect Americans abroad. It upsets the basic
principles of federalism and raises serious constitutional
concerns. It should be rejected.
I would be pleased to address any questions you might pose
and particularly would like to speak about what is it that the
Medellin decision and the Avena decision really provide for
since there were some points made in this regard this morning
which I find myself to be in disagreement.
Thank you.
[The prepared statement of Mr. Rivkin appears as a
submission for the record.]
Senator Blumenthal. Thank you, Mr. Rivkin.
I am going to ask Senator Grassley to ask the first round
of questions.
Senator Grassley. I thank you for your courtesy, Mr.
Chairman, because at about 11:40 I have a phone call I would
like to take.
I am going to ask Mr. Rivkin this. The bill before us would
require State and local officials to inform foreign arrestees
of their right of consular notification, to communicate such
requests, and to make sure that consular officials obtain
access. Although the Vienna Convention currently imposes those
duties, it does not actually direct those State and local
officials to do so. The State and Justice Departments provide
assistance and education to State and local law enforcement to
adhere to those duties. By contrast, the bill before us would
impose a Federal statutory duty on those officers.
My first question is: Do you believe that if the bill would
codify what the Vienna Convention says that it can do so
consistent with constitutional principles?
Mr. Rivkin. Thank you, Senator Grassley. I believe the
answer is no. Consistent with our dual sovereignty system, the
kind of duties imposed on State officials cannot be legislated
by the Federal Government without violating the Constitution.
And with all due respect--my utmost respect for Chairman Leahy,
it is the Constitution that is the supreme law of the land. I
do not think it is open to any serious debate that a treaty, or
a particular interpretation of a treaty or a particular mode of
implementing the treaty, to the extent that it contradicts the
Constitution, is not entitled to any obedience by federal or
state officials.
Senator Grassley. I think you just touched on the second
question, but let me ask it anyway. How do you reconcile the
tensions when a treaty requires one thing and the Constitution
requires another?
Mr. Rivkin. That is an excellent question, and it really
addresses a broader issue that is often misunderstood. I think
we can do a number of things, and we do not really have the
alleged binary choice that I think underlies the policy
imperatives reflected in S. 1194.
First of all, we would do very well to keep informing our
foreign partners about the constitutional distinctiveness of
the United States. In this regard, nothing can be more
troubling than signing treaties with broad and capacious
language. Conventions banning hateful speech, for example, as
utterly inconsistent with the First Amendment, whatever the
policy merits may be. Or we sign a treaty like the Vienna
Convention, of 1963, which is an excellent convention, but it
would have behooved us in the form of a reservation, for
example, when the Senate ratified it or consented to
ratification in 1969, to remind everybody that there are some
things in our dual sovereignty system that the Federal
Government cannot--repeat, cannot--compel State officials to
do. It is not too late, as a matter of fact, to do that even
now. International law recognizes even in the context of a
treaty that has been in force for a considerable time that each
State party can put forward its position construing its
obligations. As a matter of fact, that is one distinctive
feature of international law that the treaty commitments are
defined and measured, Senator Grassley, exclusively by the
views of the State parties.
Now, that does not dispose of the problem posed by the
Avena decision, which I think is fundamentally incorrect. And,
by the way, I hope my good friend and former colleague, John
Bellinger, would agree with me that the Avena decision was
incorrectly decided because, after all, that is what the Bush
administration was arguing. So we do not have a problem with
the Vienna Convention properly construed, Senator Grassley. We
have a problem only with the Avena decision, and even so we
have a range of possibilities for dealing with this problem.
One possible way to look at it is to say we are in
violation of our obligations under Article 94 of the U.N.
charter. By the way, we heard a number of statements about the
Medellin decision this morning. To clarify, what Chief Justice
Roberts' opinion says is that the Avena decision establishes an
international legal obligation. It never says--and it was not a
matter before the court--we are in violation of it. Now you can
obviously say we are technically in violation of our
obligations under Article 94. Or, if you want to be a bit more
aggressive, you parse the language of Article 94, it says
``undertake to comply.'' You read the ``undertake to comply''
language in accordance with our constitutional obligations and
say we are not actually in violation of Article 94. Another way
we can deal with it, we can certainly withdraw from the
Optional Protocol of 1964, since we already withdrew from the
compulsory jurisdiction, general of ICJ.
To summarize, there are many ways in which we can reconcile
our international obligations and our constitutional
obligations, but I would submit to you that all of the
tweaking, all of the adjustments have to occur on the
international law side. We cannot possibly tweak and adjust the
Constitution without going through the process of a
constitutional amendment.
Senator Grassley. Mr. Chairman, I think I will yield back
my time because I have got to go, and thank you for your
courtesies, and I will submit some questions for answer in
writing.
Senator Blumenthal. Thank you, Senator Grassley.
I am going to ask Mr. Bellinger to respond to Mr. Rivkin in
just a moment, as he invited Mr. Bellinger to do, but first I
have a few questions for Ms. Gillis, who is not a lawyer but a
very distinguished scholar and journalist and has come here
really to relive a horrific experience and give us a face and a
voice that very powerfully shows the benefit of this proposed
law and a benefit not just to lawyers and diplomats or even
military people, but to ordinary citizens and journalists who
may be in peril when they are in other countries. And the irony
here, one of the ironies, is that a government that physically
abused you, detained you without access to telephones under
circumstances that most Americans would find absolutely
unacceptable, nonetheless followed the requirements of law that
it give you access to some consular service. And so I wonder if
you could tell us, Ms. Gillis, your feelings. You have
described the fear as, in fact, indescribable when you were
first detained, and you have given us some benefit of the
description of what you felt, but I wonder if you could
elaborate a little bit on what it meant to you to be, in
effect, incarcerated, detained under those circumstances and
what it meant also have access to the Turkish and then
Hungarian officials.
Ms. Gillis. Well, essentially we knew that we were in a
place where there was no rule of law. We knew that, you know,
our requests for lawyers were ignored. We asked for phone calls
on numerous occasions, and only after 16 days did we get one.
And I think since the U.S. embassy had pulled out so long ago,
we did not even know who to ask for. And I think being at the
mercy of a foreign justice system, which, you know, I would not
want to describe the Libyan system as having much to do with
justice, and certainly the simple fact of everything happening
in a foreign language, when I think about other prisoners who
come somewhere and, you know, I hope they have a translator.
But the simple fact of not being able to use your native
language when you are in these circumstances, that you are at
the mercy of a foreign system was really overwhelming for us.
We did not know--we did not have any idea if our families knew
if we were alive or dead, and when I heard from my mother that
at least the Turks were trying and working very hard to get
this access to us, it made a big difference in terms of our
levels of hopelessness, basically. We did not know before then
that anyone was looking for us. We did not know if people knew
we were alive or that we had been captured or what.
Senator Blumenthal. And, in fact, during the initial period
of your detention you were interrogated for some 6 hours
between 1 and 7 in the morning.
Ms. Gillis. Yes.
Senator Blumenthal. And then you were given a piece of
paper or several pieces of paper in Arabic which you could not
understand to sign and were told you had to sign it.
Ms. Gillis. Yes, well, I was blindfolded for the 6 hours of
the interrogation, and when they took the blindfold off, they
said, OK, you know, you can go back to your cell, go to sleep,
but you have to sign these first. And, you know, that is why I
would say I cracked. I started crying, and I said, you know, I
really--how can I sign this? I do not know what it says. It
could say that I am a spy. I could be signing my own death
certificate. And I realized--you know, he just kept waving the
pen, and I realize I do not have a choice, and so I signed
everything, and I put my green thumbprint on each page. Just to
imagine someone else in that situation I think--yeah, I would
not--I would not want to see someone else in that situation
without some kind of access to at least speak their native
language.
Senator Blumenthal. And that situation could be recurring
for citizens around the globe at this moment given the
lawlessness of many regimes in this world.
Ms. Gillis. Absolutely.
Senator Blumenthal. And, in fact, particularly for
journalists, 20 of whom have been detained in Libya, 4 of them
killed.
Ms. Gillis. Yes.
Senator Blumenthal. This situation arises even more
frequently.
Ms. Gillis. Yes. And I would like to mention Matthew
VanDyke who is, I believe, a native of Baltimore. He is still
being held in Libya. He has been sighted a few times, but it
has not been confirmed. And, you know, we wonder where he is,
and we are all looking for him.
Senator Blumenthal. Well, thank you, and I again want to
thank you for your courage, there and here, and giving the
entire Committee who will review this testimony, and their
staffs, the benefit of this really firsthand experience with
this lawless regime but, nonetheless, one that gave you access
to the means to be rescued. Thank you.
Ms. Gillis. Eventually they did, yes.
Senator Blumenthal. Eventually. It took 6 weeks.
Ms. Gillis. Yes.
Senator Blumenthal. But they did eventually.
Ms. Gillis. Thank you.
Senator Blumenthal. Mr. Bellinger, I wonder if you could
please respond to some of the points that Mr. Rivkin has made
about Medellin and Avena.
Mr. Bellinger. Certainly, Senator. Thank you. Let me make a
couple of the points. David Rivkin is a good friend, and we
agree actually on most points of international law. I think on
this one we do disagree. Let me just take these one at a time.
One, there clearly is a legally binding obligation under
the U.N. Charter to comply with the ruling of the ICJ. There
really is no dispute about that. All members of the Supreme
Court, all nine, said that there is no dispute that we have to
comply with the international law obligation. The question is
how we implement it.
The Bush administration believed that the President had the
power under the Constitution to order compliance. That would be
the most efficient way to do it rather than to wait a long time
for Congress to pass legislation. After all, the Senate had
agreed to the U.N. Charter, which included Article 94, so it
seemed reasonable to conclude that between the President's
inherent constitutional powers and the Senate's advice and
consent to the U.N. Charter that he had the power to order
compliance. The Supreme Court said, no, he could not do it
directly, but invited Congress to pass legislation.
So, one, the issue is not now compliance under the Vienna
Convention. We have already violated the Vienna Convention. But
now we have to comply with the ruling of the ICJ under the U.N.
Charter even though we disagree with that.
Second, I have to disagree with the policy point that
because other countries comply--which they do, even in the case
of Libya ultimately--because other countries comply with their
obligations to us that we are off the hook, that we should not
have to do it. We should lead, not follow. I think it is
remarkable that anybody could suggest that because other
countries in the world generally follow their obligations to
us, why bother for the U.S. to comply? One, that is not what
this country is about. And, two, it is very short-sighted
because there are cases when other countries do not comply with
us and they do, as you heard this morning, come back to us and
say, ``Well, why should we comply with our obligation to you?
You do not comply with your obligations to us.''
A case that Senator Graham mentioned with is apropos was
the case of Raymond Davis, the CIA agent in Pakistan, where,
interestingly, the state regional authorities in Pakistan who
had arrested him said, ``We do not have to comply with
Pakistan's international law obligation to observe immunity.
This is a matter of local criminal justice, and we want to keep
Raymond Davis,'' even though there was an international law
obligation binding on Pakistan. Members of Congress were
threatening to cutoff aid to Pakistan because the country was
not complying with their international law obligations to us.
The principle is exactly the same here. In this case the
Federal Government can require the States to comply with our
international law obligations, which gets to my last point. I
do not think we are commandeering State rights in this case.
Even Texas does not dispute that they have an obligation to
inform people who are arrested of their consular rights. They
only dispute now that after the individuals who have been
tried, prosecuted, convicted, and have exhausted all of their
appeals, they essentially are saying their hands are tied under
State law.
Governor Perry even wrote to Secretary Rice, my boss at the
time, to say, ``We will offer review and reconsideration in the
cases where we can continue to do so,'' and said in a brief to
the Supreme Court that it would impose minimal burden. So even
the States are not suggesting that this is an infringement on
their affairs to require State law enforcement officials to
notify individuals who are arrested of their individual rights.
And I do not think that this bill--although I certainly would
be open to certain tweaks to it--as a conceptual matter,
requires State officials to do anything that they are not
already doing or trenching on States' rights in a way that is
inappropriate.
Senator Blumenthal. Thank you.
Mr. Rivkin, I do not guarantee the last word, but you
certainly are entitled to respond.
Mr. Rivkin. Very kind of you. First of all, a couple of
legalistic points that are at least dear to the hearts of
lawyers. I never suggested that the Medellin majority decision
does not say that Article 94 is a binding international
obligation. What I did say--and I have not heard John disagree
with me--is that the Medellin decision never found that we are
in violation of our obligation under Article 94 of the U.N.
change. The reason that is important, Senator, is because there
were a number of statements made this morning that create the
impression that somehow we are in default, that we have
committed a delict under international law and so we are in a
bad situation.
That is not true. In fact, the Bush Administration--and I
am sure John recalls this--specifically said that Article 94,
the language of Article 94, establishes a commitment on the
part of U.N. members to take future action with no specific
indication as to a timeline. So as a technical matter, I do not
think that even today we are in violation of Article 94. We
should of course try to implement Avena decision in good faith
and in a way that comply with the constitution.
The way that S. 1194 goes about doing this does violate the
well-established principles of constitutional law. It is one
thing to say that State officials are obliged to comply with a
stayed request for consul access. There has not been a single
instance I am aware of or brought to the attention of this
Committee where a foreign national a state official asked for
consular access and was not given it. The problem arises
because in our multi-ethnic society, in our multi-ethnic
democracy where people speak with foreign accents, it is
considered to be improper to ask people about their ethnic and
national origin even if they have been detained. Moreover,
unlike in Europe or in many other counties we do not have
people carrying identification papers. If you are arrested in
Switzerland or Germany, the government immediately knows who
you are. To emphasize, the problem arises because we have
people who did not ask for consular access, and years later,
after they have received the highest level of due process,
their lawyers discovered that maybe they are foreign nationals.
The Court in Avena, by the way, said that it is not clear that
Article 36 that we are talking about today, even applies to
dual nationals, nor is it even clear it applies to individuals,
who have permanent residency in the United States.
So there are all sorts of difficult compliance questions
here that do not in any way get close to the violation of
international law, in my opinion.
Senator Blumenthal. Thank you very much.
I would certainly entertain a brief response from any of
the other witnesses, or we could take in writing any
supplementary comments that you may have. We are going to keep
the record open for 1 week.
Did you have anything, Ms. Gillis or Mr. Bellinger, that
you would like to add?
Mr. Bellinger. I would just very briefly state that it is
clear that when it comes to certain treaty obligations, even if
they require States to do certain things, the States are
required to comply. No one would suggest--and I am sure Texas
would not suggest--that if a State law enforcement official
arrested a foreign diplomat and the Federal Government were to
require Texas to release that diplomat, that under some
principle of federalism Texas would not be required to do that.
This principle is exactly the same here. We certainly can
require as a matter of Federal Government power to comply with
our treaty obligations, which are binding on all of the States
as a general matter of international law, to require State
officials to take certain actions, and this bill I think is
consistent with our obligations under international law, as the
Supreme Court saw them in the Medellin case. We are now taking
up the invitation that Chief Justice Roberts gave to Congress
to pass legislation that would allow us to comply with our
clear international law obligation.
Thanks very much.
Ms. Gillis. Yes, I would just like to add that it seems to
me that the willingness of the Turkish Ambassadors or the
Hungarian ambassadors to take over as protective powers for
U.S. citizens in Libya has to do with the fact that when they
look at us, they want to see us respecting our obligations. And
the same for the Swedish Ambassadors who stepped in for the
journalists who were caught in North Korea and the Swiss
Ambassadors who handled the case of the Americans who are
currently being detained in Iran. That is to say, these
countries that we do not maintain diplomatic relations with,
the most dangerous, darkest places for American citizens, I
think the willingness of other countries to step in and act as
our protective powers probably has a lot to do with the fact
that they feel that we obey the rule of law.
Senator Blumenthal. And that we are, in fact, a model for
the rule of law.
Ms. Gillis. Yes.
Senator Blumenthal. Not the lowest common denominator, that
we embody the principles of due process and fairness, not just
that we are grudgingly observing them as part of the lowest
common denominator.
Ms. Gillis. Yes, exactly. We want to think of ourselves as
the standard bearers in this, and others look to us in this
sense. So I think it is important to honor that obligation.
Thank you.
Senator Blumenthal. Thank you. Well, again, we will stand
adjourned. The record will remain open for 1 week in case
anyone wants to supplement anything.
This hearing is adjourned. Thank you very much.
[Whereupon, at 11:55 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]