The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“CONSULAR NOTIFICATION COMPLIANCE ACT” mentioning the U.S. Dept of State was published in the Senate section on pages S4215-S4218 on June 29, 2011.
The publication is reproduced in full below:
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 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.
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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.
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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.
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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.
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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.
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