[Senate Hearing 112-148]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 112-148




                               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

71-110 PDF                WASHINGTON : 2011
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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
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director

                            C O N T E N T S




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


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



                        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 

                      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 
    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 
    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.

                            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 
    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 
    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 
    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.


    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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, 
    [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 
    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.
    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.


    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 
    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 
    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.


    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 
    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.

                      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 
    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 
    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 
    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 
    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 
    Ms. Gillis. Yes.
    Senator Blumenthal. This situation arises even more 
    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 
    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