[Congressional Record Volume 157, Number 95 (Wednesday, June 29, 2011)]
[Senate]
[Pages S4215-S4218]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONSULAR NOTIFICATION COMPLIANCE ACT
Mr. LEAHY. Mr. President, on June 14, 2011, I introduced the Consular
Notification Compliance Act. This legislation will help bring the
United States into compliance with its obligations under the Vienna
Convention on Consular Relations, VCCR, and is critical to ensuring the
protection of Americans traveling overseas.
Each year, thousands of Americans are arrested and imprisoned when
they are in foreign countries studying, working, serving in the
military, or traveling. From the moment they are detained, their safety
and well-being depends, often entirely, on the ability of U.S. consular
officials to meet with them, monitor their treatment, help them obtain
legal assistance, and connect them to family back home. That access is
protected by the consular notification provisions of the VCCR, but it
only functions effectively if every country meets its obligations under
the treaty--including the United States.
As we now know, in some instances, the United States has not been
meeting those obligations. There are currently more than 100 foreign
nationals on death row in the United States, most of whom were never
told of their right to contact their consulate, and their consulate was
never notified of their arrest, trial, conviction, or sentence. This
failure to comply with our treaty obligations undercuts our ability to
[[Page S4216]]
protect Americans abroad and deeply damages our image as a country that
abides by its promises and the rule of law. It would also be completely
unacceptable to us if our citizens were treated in this manner.
The Consular Notification Compliance Act seeks to bring the United
States one step closer to compliance with the convention. It is a
narrowly crafted solution. It focuses only on the most serious cases--
those involving the death penalty--but it is a significant step in the
right direction and we need to work together to pass it quickly. Texas
is poised to execute the next foreign national affected by this failure
to comply with the treaty on July 7, 2011. He was not notified of his
right to consular assistance, and the Government of Mexico has
expressed grave concerns about the case. We do not want this execution
to be interpreted as a sign that the United States does not take its
treaty obligations seriously, or to further damage relations with an
important ally with which we share a border. That message puts American
lives at risk.
Since introduction of the Consular Notification and Compliance Act,
the Department of Justice and the Department of State have worked with
me to explain the importance of the bill, its limited nature, and the
urgent need to see it passed. On June 28, Attorney General Holder and
Secretary Clinton wrote to me in support of the ``carefully crafted,
measured, and essential legislative solution'' included in the Consular
Notification and Compliance Act. I will ask consent to have a copy of
the letter printed in the Record at the conclusion of my remarks. We
have already had productive discussions with Republicans and Democrats
from both the House and Senate. I appreciate that others are willing to
work together to address this critical issue.
I also want to note all of the favorable commentary the bill has
generated, including multiple editorials in major newspapers and
numerous letters of support from across the political spectrum. I also
will ask that a selection of those be printed in the Record following
my remarks.
Everyone agrees that this legislation is not about giving breaks to
criminals. It is not about expanding habeas corpus relief. It is not
about weakening the death penalty. This 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.
The bottom line is this--our failure to comply with our legal
obligations places Americans at risk. As chairman of the Senate
Judiciary Committee, I am announcing that I intend to hold a hearing on
this critical issue in July. We must work together, and we must act
now.
Mr. President, I ask unanimous consent to have printed in the Record
the letters and editorials to which I referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:
June 28, 2011.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: We thank you for your extraordinary
efforts to enact legislation that would facilitate U.S.
compliance with its consular notification and access
obligations and to express the Administration's strong
support for S. 1194, the Consular Notification Compliance Act
of 2011 (CNCA).
The millions of U.S. citizens who live and travel overseas,
including many of the men and women of our Armed Forces, are
accorded critical protections by international treaties that
ensure that detained foreign nationals have access to their
country's consulate. Consular assistance is one of the most
important services that the United States provides its
citizens abroad. Through our consulates, the United States
searches for citizens overseas who are missing, visits
citizens in detention overseas to ensure they receive fair
and humane treatment, works to secure the release of those
unjustly detained, and provides countless other consular
services. Such assistance has proven vital time and again, as
recent experiences in Egypt, Libya, Syria and elsewhere have
shown. For U.S. citizens arrested abroad, the assistance of
their consulate is often essential for them to gain knowledge
about the foreign country's legal system and how to access a
lawyer, to report concerns about treatment in detention, to
send messages to their family, or to obtain needed food or
medicine. Prompt access to U.S. consular officers prevents
U.S. citizen prisoners from being lost in a foreign legal
system.
The United States is best positioned to demand that foreign
governments respect consular rights with respect to U.S.
citizens abroad when we comply with these same obligations
for foreign nationals in the United States. By sending a
strong message about how seriously the United States takes
its own consular notification and access obligations, the
CNCA will prove enormously helpful to the U.S. Government in
ensuring that U.S. citizens detained overseas can receive
critical consular assistance.
The CNCA will help us ensure that the United States
complies fully with our obligations to provide foreign
nationals detained in the United States with the opportunity
to have their consulate notified and to receive consular
assistance. By setting forth the minimal, practical steps
that federal, state, and local authorities must take to
comply with the Vienna Convention on Consular Relations
(VCCR) and similar bilateral international agreements, the
CNCA will ensure early consular notification and access for
foreign national defendants, avoiding future violations and
potential claims of prejudice for those who are prosecuted
and ultimately convicted. In this regard, the legislation is
an invaluable complement to the extensive training efforts
each of our Departments conducts in this area.
The CNCA appropriately balances the interests in preserving
the efficiency of criminal proceedings, protecting the
integrity of criminal convictions, and providing remedies for
violation of consular notification rights. By allowing
defendants facing capital charges to raise timely claims that
authorities have failed to provide consular notification and
access, and to ensure that notification and access is
afforded at that time, the CNCA further minimizes the risk
that a violation could later call into question the
conviction or sentence. The CNCA provides a limited post-
conviction remedy for defendants who were convicted and
sentenced to death before the law becomes effective. To
obtain relief, such defendants face a high bar: They must
establish not only a violation of their consular notification
rights but also that the violation resulted in actual
prejudice. Going forward, the CNCA permits defendants who
claim a violation of their VCCR rights an opportunity for
meaningful access to their consulate but does not otherwise
create any judicially enforceable rights.
After more than seven years and the efforts of two
administrations, the CNCA will also finally satisfy U.S.
obligations under the judgment of the International Court of
Justice (ICJ) in Case Concerning Avena and Other Mexican
Nationals (Mex. v. US.), 2004 I.C.J. 12 (Mar. 31). As we
expressed in April 2010 letters to the Senate Judiciary
Committee, this Administration believes that legislation is
an optimal way to give domestic legal effect to the Avena
judgment and to comply with the U.S. Supreme Court's decision
in Medellin v. Texas, 552 U.S. 491 (2008). The CNCA will
remove a long-standing obstacle in our relationship with
Mexico and other important allies, and send a strong message
to the international community about the U.S. commitment to
honoring our international legal obligations.
The CNCA unmistakably benefits U.S. foreign policy
interests. Many of our important allies and regional
institutions with which we work closely--including Mexico,
the United Kingdom, the European Union, Brazil and numerous
other Latin American countries, and the Council of Europe,
among others--have repeatedly and forcefully called upon the
United States to fulfill obligations arising from Avena and
prior ICJ cases finding notification and access violations.
We understand that the Governments of Mexico and the United
Kingdom have already written to Congress to express their
strong support for this legislation.
This legislation is particularly important to our bilateral
relationship with Mexico. Our law enforcement partnership
with Mexico has reached unprecedented levels of cooperation
in recent years. Continued noncompliance with Avena has
become a significant irritant that jeopardizes other
bilateral initiatives. Mexico considers the resolution of the
Avena problem a priority for our bilateral agenda. The CNCA
will help ensure that the excellent U.S.-Mexico cooperation
in extradition and other judicial proceedings, the fight
against drug trafficking and organized crime, and in a host
of other areas continues apace.
In sum, the CNCA is a carefully crafted, measured, and
essential legislative solution to these critical concerns. We
thank you again for your work towards finding an appropriate
legislative solution to this matter of fundamental importance
to our ability to protect Americans overseas and preserve
some of our most vital international relationships.
Sincerely,
Eric H. Holder, Jr.,
Attorney General.
Hillary Rodham Clinton,
Secretary of State.
____
[From the Washington Post, June 13, 2011]
Why the U.S. Should Allow Arrested Foreigners To Contact Their
Consulates
Humberto Leal Jr. is scheduled to be put to death by the
state of Texas next month
[[Page S4217]]
for the 1994 murder of a 16-year-old girl. Like so many cases
involving capital punishment, Mr. Leal's has generated
controversy, but not for the typical reasons.
Mr. Leal is a Mexican national. When he was arrested, Texas
officials failed to advise him of his right to communicate
with his country's embassy as required by the Vienna
Convention on Consular Relations. The United States, Mexico
and some 160 other countries are signatories to the
convention. Mr. Leal is one of roughly 40 Mexican nationals
who were not advised about consular access and who sit on
death row in this country.
Mexico filed a grievance on behalf of its nationals and
prevailed in 2004 before the International Court of Justice
(ICJ), the judicial arm of the United Nations. The ICJ
concluded that the United States was obligated to comply with
the treaty and that it should review these cases to determine
whether the defendants had been harmed by the lack of
notification.
Texas, where the majority of these inmates are held,
balked. Three years ago, the state executed Jose Ernesto
Medellin, another Mexican national who was not informed of
his right to consular access and who was denied additional
review. The state is likely to take the same approach in the
Leal case. ``Here, in Texas, if you commit terrible and
heinous crimes you're going to pay the ultimate price,'' says
Katherine Cesinger, press secretary to Gov. Rick Perry.
This misses the point entirely. This is not about coddling
criminals nor is it a referendum on the death penalty. It is
about a country's obligation to honor its treaty commitments.
The United States must comply with the Vienna Convention--and
demonstrate good faith in addressing past mistakes--if U.S.
citizens abroad are to be afforded the same rights and
protections.
Sen. Patrick J. Leahy (D-Vt.) is expected to introduce
legislation as soon as this week to provide meaningful review
in federal court for those denied consular access. The
legislation should be narrowly tailored and mandate that the
legal proceedings focus solely on whether denial of access
seriously prejudiced an inmate's ability to defend against
charges. The bar for success should be high, and only those
who can provide compelling evidence of such harm should be
allowed a new trial or benefit from a reduced sentence.
To avoid this problem in the future, federal and state
governments should be diligent about abiding by the treaty's
mandates. The State Department should continue its outreach
to state and local governments to impress upon law
enforcement officials the importance of the consular
notification. Complying with the treaty is not only the right
thing to do; it is the smart and self-interested thing to do.
____
[From the New York Times, June 17, 2011]
The Treaty and the Law
Humberto Leal Garcia Jr., a Mexican citizen who faces
execution in Texas next month, has petitioned Gov. Rick Perry
for a six-month reprieve. He is asking for a stay under a
vital international law, the Vienna Convention on Consular
Relations, which requires that foreign nationals who are
arrested be told of their right to have their embassy
notified of that arrest and to ask for help.
In recent years, the treaty has provided important
protection for Americans who have been detained in Iran,
North Korea and elsewhere. Mr. Leal was not notified after
his arrest of his right to contact his embassy. But the
Supreme Court ruled in 2008 that Texas did not need to comply
with the treaty because there is no federal law requiring
that states do so.
Senator Patrick Leahy of Vermont on Tuesday introduced a
bill that makes clear that federal law requires that states
tell foreign nationals who have been arrested that they can
contact their consulates for help.
For those who were convicted and sentenced without being
told, the bill would let them ask a federal court to review
their case and decide whether the outcome would have been
different if they had had diplomatic help. After the bill was
introduced, Mr. Leal petitioned Federal District Court for a
stay to keep Texas from ``rushing to execute'' him before
Congress has time to act.
Mr. Leal, convicted of murder during a sexual assault, had
grossly incompetent legal representation. If he had been
given access to a Mexican diplomat, he would have had a
chance at better counsel and likely the opportunity to strike
a plea deal, avoiding the death penalty.
For the sake of justice, the governor and court should
grant the stays. For the protection of foreigners arrested
here, and American citizens arrested abroad, Congress should
pass Senator Leahy's bill.
____
[From the Austin American-Statesman, June 10, 2011]
Execution Case Important to International Relations
The Golden Rule of life also applies to the tricky business
of international relations. What we do to non-Americans in
our country we can reasonably expect to be done unto
Americans in other countries.
It is for that reason that Gov. Rick Perry and the Texas
Board of Pardons and Paroles--both in the uncommon position
of making a decision with international impact--should
commute or postpone the death sentence of Humberto Leal, a
Mexican raised in Texas, scheduled to die July 7 for the 1994
murder of Adria Sauceda, 16, in Bexar County.
The key issue in this case at this point is not whether
Leal committed the crime. Also not central now are the
circumstances involving Leal, including sexual abuse by a
priest, a challenging family history and other factors that,
though significant, fail to add up to justification for
murder. They could, however, count as mitigating factors that
argue for a life sentence.
It's what happened after Sauceda was killed that is at
issue. More specifically, it's what didn't happen. Despite
the Vienna Convention on Consular Relations requirements,
Leal was not informed of his right to contact Mexican
officials to seek legal assistance. Records indicate that he
was not aware of that right until told about it by a fellow
death row inmate.
Instead of getting legal help from Mexican consular
officials, who have a track record of providing quality legal
representation for Mexicans facing the death penalty in the
U.S., Leal was represented by a court-
appointed team that included a lawyer who twice had his
license suspended.
Back in 2004, the International Court of Justice said Leal
was entitled to a hearing to determine the extent of harm he
suffered as a result of the lack of consular access. A U.S.
Supreme Court ruling has said the U.S. must comply with the
decision by the international court. Texas, citing state law,
said no such hearing could take place. Congress now is poised
to consider legislation, to be filed in coming weeks, that
would establish a procedure for a federal court hearing on
the extent of harm caused to Leal because he was not advised
of his right to contact Mexican officials.
In a clemency petition filed this week, an impressive list
of former U.S. diplomats, retired military leaders and others
concerned about international matters urged a stay of
execution to grant Congress time to deal with this case.
At stake, they said, are the consular rights of Americans
who become entangled in legal problems while out of the
country.
``For Texas to proceed with (Leal's) execution prior to
full compliance with these treaty obligations would endanger
the interests of American citizens and the United States
around the world,'' John B. Bellinger III, a State Department
legal adviser in the George W. Bush administration, said in a
letter signed by others and delivered to Perry.
The former military leaders told Perry that ``improving
U.S. enforcement of its consular notification and legal
access obligations will help protect American citizens
detained abroad, including U.S. military personnel and the
families stationed overseas.''
Sandra L. Babcock, a Northwestern University law professor
representing Leal, said he would not have been convicted if
he had received proper consular assistance. We have no way of
knowing that. But there is no arguing with Babcock's
contention that ``with consular access, Mr. Leal would have
had competent lawyers and expert assistance that would have
transformed the quality of his defense.''
And, as she noted, Mexican officials have developed
expertise in helping Mexicans facing the death penalty in the
U.S.
``It really is a very modest remedy we are talking about,''
Babcock said.
Modest, indeed, but with important international
ramifications.
____
[From the Houston Chronicle, June 22, 2011]
Keeping Our Word: Scheduled Texas Execution Violates Treaty and
Endangers Americans Abroad
Americans traveling abroad are protected, whether they are
aware of it or not, by a treaty called the Vienna Convention
on Consular Relations, ratified by about 170 countries, which
guarantees them access to U.S. consular assistance if they
are detained or arrested in a foreign country. In 2010, more
than 6,600 Americans were arrested abroad, and more than
3,000 were incarcerated. Many of them benefited from the
protections of this treaty.
But unfortunately, the U.S. has repeatedly failed to offer
those same protections to foreigners on U.S. soil. The most
egregious of these violations is the denial of consular
assistance to foreign nationals convicted and sentenced to
death. (Currently, about 100 foreign nationals are on U.S.
death rows.) And in a particularly urgent case, one of those
individuals whose rights were violated, a Mexican national
named Humberto Leal Garcia, is scheduled to be executed on
July 7 in Huntsville.
Because a bill has been introduced to bring the U.S. into
compliance with the treaty, Leal's attorneys have filed a
federal petition and a motion for a stay of execution so that
Leal will be alive and eligible for the remedies of this
legislation when it becomes law.
There are compelling reasons why these petitions should be
granted. Chief among them is the fact that this pending
legislation will allow for review of cases like Leal's, said
his attorney Sandra Babcock, ``where lack of consular
assistance may well have made the difference between life and
death. That's why the consular access really matters.''
Mexico provides top-flight legal assistance to its nationals
under such circumstances.
Leal's court-appointed attorneys were ineffective and
inexperienced, Babcock told the Chronicle, resulting in harm
to Leal in both the guilt-or-innocence and the penalty phases
of his trial. According to Babcock,
[[Page S4218]]
they failed to challenge the prosecution's ``junk science''
and flawed DNA evidence or to present expert testimony on
Leal's learning disabilities and brain damage. Leal,
sentenced to death for the 1994 rape and murder of a 16-year-
old girl, was then 21 and had no criminal record.
Also, there is no dispute that this treaty is the law: In
2003, Mexico filed suit against the U.S., claiming that 51
Mexican nationals sentenced to death in U.S. courts had been
denied consular access. (Leal was one of them.) In 2004, the
International Court of Justice ruled that the U.S. must
review those individuals' cases. The issue was finally
resolved, in 2008, by the U.S. Supreme Court, which
unanimously supported the ICJ decision but ruled that it was
up to Congress to implement it.
That is what Senate Judiciary Committee Chairman Patrick
Leahy addressed last week, when he introduced legislation to
allow federal courts to review such cases, and to increase
compliance and provide remedies.
And finally, as Leahy eloquently stated, the U.S. failure
to honor its treaty obligations ``undercuts our ability to
protect Americans abroad and deeply damages our image as a
country that abides by its promises and the rule of law. It
would also be completely unacceptable to us if our citizens
were treated in this manner.''
For all of these reasons, we urge Congress to act swiftly
to pass this legislation, and we urge Gov. Perry to give
Leal, and others in his situation, the time to benefit from
its remedies if they are shown to have been harmed.
____________________