[Congressional Record (Bound Edition), Volume 157 (2011), Part 7]
[Senate]
[Pages 10196-10198]
[From the U.S. 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 
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

[[Page 10197]]

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 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

[[Page 10198]]

     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, 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.

                          ____________________