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Consular notification and access: the "international golden rule".

Police officers face increasing challenges because of the blurred lines between domestic law enforcement activities and the international community. Complying with the rights afforded foreign nationals when arrested or detained is one such area recently revisited by the U.S. Supreme Court.

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This article begins with a brief overview of the rights afforded foreign nationals in the Vienna Convention on Consular Relations (Vienna Convention), (1) details the substance and purpose of consular notification and access, summarizes the meaning and impact of the Supreme Court's most recent ruling in this area, provides practical guidance for law enforcement officers regarding the implementation of notification requirements; and concludes with an explanation of why it is important for law enforcement officers at all levels of government to know, understand, and enforce the law with regard to consular notification.

THE VIENNA CONVENTION

One of the many functions of any national government is to provide services and assistance to its citizens who live and travel abroad. This assistance generally is carried out by employees of the national government, known as consular officers, who work in established embassies or consulates within the foreign country. These consular officers are authorized to provide a variety of services, which range from simple notarization of legal documents to large-scale evacuation of citizens in times of danger. The need for consular assistance is, arguably, at its zenith when a citizen is arrested or otherwise detained by the foreign government. In these situations, consular officers, if notified of the detention, can provide their citizens with vital support, such as "attempting to ensure that they receive a fair and speedy trial with benefit of counsel; visiting them in prison to ensure that they are receiving humane treatment; and facilitating communications with their families." (2)

Traditionally, consular functions were performed as part of customary international law and not codified by formal treaty. In time, however, countries began to formalize their consular relations in bilateral contracts called treaties, conventions, or agreements--all of which carry the binding status of a treaty for purposes of international law. (3)

In 1963, over 90 countries, including the United States, convened at the United Nations Conference on Consular Relations in Vienna, Austria, to create the Vienna Convention. (4) The Vienna Convention is a multilateral treaty that codified the international common law governing consular relationships and has been referred to as "undoubtedly the single most important event in the entire history of the consular institution." (5) The Vienna Convention was completed on April 24, 1963, at which time countries throughout the world began the ratification process. (6)

It was not until December 24, 1969, after being ratified by President Richard Nixon upon the advice and consent of the Senate, that the Vienna Convention became enforceable in the United States. (7) "The Nixon Administration finally sought ratification of the Vienna Convention because it believed the agreement 'constitutes an important contribution to the development and codification of international law and should contribute to the orderly and effective conduct of consular relations between [nations].'" (8)

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Today, most countries--170 different nations--are party to the Vienna Convention. (9) "Because of its comprehensive nature and near-universal applicability, the [Vienna Convention] now establishes the 'baseline' for most obligations with respect to the treatment of foreign nationals in the United States, and for treatment of U.S. citizens abroad by foreign governments." (10) In addition to the Vienna Convention, other bilateral consular treaties exist, which, in many instances, provide additional obligations for the nations participating in such bilateral agreements. (11)

The Vienna Convention is made up of 79 articles, most of which provide rules for the operation of consulates, outline the functions of consular officers, and address the privileges and immunities afforded consular officials working in a foreign country. (12) A few of the articles specify what consular officials may do for citizens of their country who may be facing special difficulties in the foreign country. (13) Of particular interest to the law enforcement community is Article 36 of the Vienna Convention, which outlines certain obligations law enforcement officers have to notify consular officials when they arrest or otherwise significantly detain a foreign national. (14)

CONSULAR NOTIFICATION AND ACCESS

Article 36 of the Vienna Convention generally requires that law enforcement officials inform arrested or detained foreign nationals, without delay, of their entitlement to have their consulate notified of the detention. Article 36 further provides that if the detainees request such notification, the consular post must be notified, without delay. Moreover, consular officials must be allowed to communicate with and have reasonable access to the detainees. (15)

As indicated above, in addition to the Vienna Convention, the United States also has entered into a number of bilateral consular treaties with specific countries. Many of these bilateral treaties mandate that consular officials be notified of the arrest or detention of one of their nationals regardless of the detainee's wishes. These are known as "Mandatory Notification Countries." (16)

In the United States, the obligations of consular notification and access provided for in the Vienna Convention, as well as other bilateral consular treaties, are binding on federal, state, and local governments by virtue of the Supremacy Clause of the Constitution. (17) Article VI of the Constitution states that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (18) In other words, federal, state, and local law enforcement officials are required by law to comply with consular notification and access rules every time they arrest or significantly detain a foreign national in the United States.

THE SUPREME COURT AND CONSULAR NOTIFICATION

The Supreme Court has addressed issues dealing with consular notification in a handful of cases. (19) On June 28, 2006, the Court issued its most recent decision in this area--Sanchez-Llamas v. Oregon. (20) Sanchez-Llamas is actually the consolidation of two state court cases (Sanchez-Llamas v. Oregon and Bustillo v. Johnson), which dealt with separate issues relating to the availability of judicially imposed remedies for violations of consular notification requirements under Article 36 of the Vienna Convention. (21)

Sanchez-Llamas v. Oregon

Moises Sanchez-Llamas, a Mexican national, was involved in a shoot-out with police in December 1999. After being arrested, the police gave him Miranda warnings (22) in both English and Spanish and then interrogated him with the assistance of a Spanish interpreter. Sanchez-Llamas made several incriminating statements and subsequently was charged with attempted murder and several other offenses. The police failed to inform Sanchez-Llamas that he was entitled to have the Mexican consulate notified of his detention.

Prior to trial, Sanchez-Llamas moved to have the statements suppressed. He argued that the statements were made involuntarily and that the police failed to comply with Article 36 of the Vienna Convention. The trial court denied the motion and Sanchez-Llamas was convicted and sentenced to 20 years in prison. He appealed, and both the Oregon Court of Appeals and the Oregon Supreme Court affirmed the conviction, concluding that Article 36 does not create rights enforceable by an individual in a judicial proceeding. (23)

Bustillo v. Johnson

Mario Bustillo, a Honduran national, was implicated in a violent homicide in December 1997. He was arrested by police the following day and eventually charged with murder. Bustillo never was informed that he could ask to have the Honduran consulate notified of his detention. At trial, Bustillo was convicted of first-degree murder and sentenced to 30 years in prison. His conviction and sentence were affirmed on appeal. It was not until later in the appeals process that Bustillo first claimed a violation of his rights to consular notification under Article 36 of the Vienna Convention. The court dismissed Bustillo's claim, concluding that he failed to raise the issue at trial or on direct appeal and was, therefore, procedurally barred from bringing the matter up too late in the appeals process--a concept known as "procedural default." (24)

The Supreme Court agreed to hear these cases to address whether 1) Article 36 of the Vienna Convention grants rights that may be invoked by individuals in a judicial proceeding; 2) suppression of evidence is a proper remedy for a violation of Article 36; and 3) an Article 36 claim may be deemed forfeited under state procedural rules because a defendant failed to raise the claim at trial. (25)

Individual Rights

At the heart of the authority to bring a challenge is whether the individual has a legal right to do so. The Supreme Court declined to definitively resolve this issue, stating that it is not necessary to decide whether the Vienna Convention creates individual rights because Sanchez-Llamas and Bustillo are not entitled to relief on their claims. Therefore, the Court addressed the petitioner's claims and assumed, "without deciding, that Article 36 does grant Bustillo and Sanchez-Llamas such rights." (26)

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The central issue of whether Article 36 of the Vienna Convention grants individuals enforceable rights remains unanswered. Most of the lower courts that have dealt with this issue, much like the Oregon court in Sanchez-Llamas, have held that the Vienna Convention does not grant individual rights. (27) On the other hand, some courts, including the dissenting justices in Sanchez-Llamas (28) and certain international courts, have held that Article 36 does, in fact, grant individual rights to arrested foreign nationals. (29)

Suppression

The focus of the Supreme Court's ruling in Sanchez-Llamas was deciding whether suppression was the appropriate remedy for a violation of Article 36. (30) In holding that suppression is not the appropriate remedy, the Court recognized that Article 36 of the Vienna Convention leaves the implementation of its provisions in the hands of individual nations: "Rights under Article 36 are to 'be exercised in conformity with the laws and regulations of the receiving [nation.]'" (31) Therefore, the Vienna Convention does not mandate suppression as a remedy. In fact, it does not prescribe any remedy but leaves the matter to domestic law. With this in mind, the Court noted, "the exclusionary rule as we know it is an entirely American legal creation" and one that almost no other nation recognizes as a matter of domestic law. (32) Moreover, the Court acknowledged that it holds no supervisory authority over state judicial proceedings and could only create a judicial remedy that would apply in state courts if the treaty itself provided for the same. To do otherwise would be to disregard the separation of powers set forth in the U.S. Constitution. (33)

The Court questioned whether Article 36 requires any judicial remedy in the context of criminal prosecution for consular notification violations, noting that hardly any of the parties to the Vienna Convention provide remedies for such violations through their domestic criminal justice systems. (34) Moreover, even if a judicial remedy is implied by Article 36, "under our domestic law, the exclusionary rule is not a remedy we apply lightly." (35) The Court emphasized that the exclusionary rule is applied primarily to deter constitutional violations of the Fourth and Fifth Amendments. To apply suppression for a violation of Article 36 would be a "vastly disproportionate remedy." (36) This is particularly true in light of the fact that "Article 36 has nothing whatsoever to do with searches or interrogations," "is only remotely connected to the gathering of evidence," and "does not guarantee detainees any assistance at all." (37)

Finally, the Court concluded that there are additional constitutional and statutory safeguards that assist in protecting the rights and interests of all persons arrested in the United States, whether or not they are citizens of this country. For example, foreign nationals enjoy the protections of the Due Process Clause, are entitled the right to an attorney, and are protected against compelled self-incrimination. Significantly, Chief Justice Roberts acknowledged that despite the Court's ruling with regard to suppression, "a defendant can raise an Article 36 claim as part of a broader challenge to the voluntariness of his statements to police." (38)

Procedural Default

In Sanchez-Llamas, the Court unequivocally held that a state may apply its procedural default rules to an Article 36 claim. (39) In other words, because Bustillo failed to raise the Article 36 claim on direct appeal, he was effectively barred from raising the claim in state post-conviction proceedings.

The Court noted that it had already settled this exact issue in 1998 with its holding in Breard v. Greene. (40) However, it appears that the Court granted certiorari in this case because of a larger issue that has sparked considerable controversy in recent years over U.S. court rulings on the application of procedural default rules on Article 36 claims for foreign nationals facing the death penalty. Indeed, Bustillo was asking the Court to reconsider its ruling in Breard in light of recent decisions by the International Court of Justice (ICJ), which interpreted the Vienna Convention as prohibiting the application of procedural default rules to Article 36 claims. (41)

In its decisions, the ICJ noted that the rights conferred by Article 36 are governed by each nation's domestic laws and regulations, "subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended." (42) The ICJ ruled, in the cases before it, that the application of procedural default rules prevented the "full effect" required by the express language of Article 36 and, therefore, should not be allowed. (43)

In declining to reconsider Breard, the Court recognized the need to give "respectful consideration" to the ICJ's interpretation of the Vienna Convention; however, the Court explained that in the United States, it is the Supreme Court, not the ICJ, that interprets the law and establishes precedent. (44)

The Court added that procedural default rules "take on greater importance in an adversary system such as ours than in the sort of magistrate-directed, inquisitorial legal system characteristic of many of the other countries that are signatories to the Vienna Convention." (45) Under our legal system, "the responsibility for failing to raise an issue generally rests with the parties themselves." (46) The Court noted, for example, that if a defendant fails to bring a Miranda claim at trial, procedural default rules can bar such claims from subsequent postconviction proceedings. (47) It would be disingenuous to preclude the application of procedural default rules for violations of the Vienna Convention when the United States does not afford the same exception for "many of our most fundamental constitutional protections." (48)

The Court, in concluding the Sanchez-Llamas opinion, stated that, "Our holding in no way disparages the importance of the Vienna Convention. The relief petitioners request is, by any measure, extraordinary.... It is no slight to the Convention to deny petitioners' claims under the same principles we would apply to an Act of Congress, or to the Constitution itself." (49)

PRACTICAL CONSIDERATIONS

Key aspects of consular notification and access requirements include answers to fundamental questions such as: what is the definition of a foreign national, who is required to make the notification, and how should the notification be communicated. As part of its efforts to educate domestic authorities and improve U.S. compliance with international treaties on consular notification and access, the U.S. Department of State has provided direction pertaining to a number of commonly asked questions. (50)

What Is the Definition of a Foreign National?

The Department of State has clarified that "For purposes of consular notification, a 'foreign national' is any person who is not a U.S. citizen." This includes lawful permanent resident aliens ("green card" holders), as well as illegal aliens. (51)

Who Is Responsible for Consular Notification?

The Vienna Convention actually states that "competent authorities" are responsible for providing notification. The Department of State has maintained that "as a practical matter: compliance with the notification requirements works best when it is assumed by those government officials closest to the foreign national's situation and with direct responsibility for it." (52) Accordingly, the law enforcement officers who actually make the arrest are responsible for the notification, not the judicial or prosecuting officials. (53)

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What Constitutes Detention?

Under the Vienna Convention, the requirements of consular notification are triggered whenever a foreign national is arrested or "detained in any other manner." (54) However, this "detention" has been interpreted as follows: "The purpose of this requirement [...] is to ensure that a government does not place an alien in a situation in which the alien cannot receive assistance from his/her own government. When an alien is cited and immediately released, this consideration is not relevant because the alien is free to contact consular officials independently. The Department of State, therefore, does not consider brief routine detentions such as for traffic violations or accident investigations to be the type of situation contemplated by the [Vienna Convention]." (55) It should be kept in mind, however, that detentions that last for an extended period of time or include the actual transportation of a detainee may trigger consular notification obligations. (56)

When Does Consular Notification Have to Be Given?

A distinction should be made regarding notification. There are two types of notice at play under the Vienna Convention. First, detained foreign nationals must be informed that they are entitled to have their consulate notified, if desired. Article 36 requires that detainees be informed of this fact "without delay." (57) This notification should occur without any deliberate delay and "as soon as reasonably possible under the circumstances." (58) As a practical matter, detainees could be advised of the right to have their consulate notified as a part of routine booking procedures.

Second, if the foreign national, in response to the initial inquiry made by the detaining officials, requests that the consulate actually be notified, the Vienna Convention requires that this notification to the consulate also take place "without delay." Similarly, the Department of State advises that this notification should occur "as soon as reasonably possible" within the consulate's regular work hours. (59)

What Type of Notification Must Be Given?

There is no required wording with regard to notification. To assist in this regard, however, the Department of State has created sample statements for informing foreign nationals of their rights in this area. (60) One statement is for use when consular notification is at the foreign national's option (i.e., under the Vienna Convention). (61) The other statement can be used when consular notification is mandatory (i.e., under other bilateral consular treaties). (62)

With regard to the notification given to consular officials, law enforcement officers need only provide the minimum information necessary to put the consulate on notice that one of their citizens has been detained. The reasons for the detention usually do not need to be provided with the initial notification. (63) The easiest and best way to provide this notification is by using the fill-in-the blank fax form created by the Department of State. (64) This form allows law enforcement officers to notify the consulate while, at the same time, creating a record of the notification. It is important that law enforcement officers keep written records regarding any actions taken in this area to show compliance with consular notification and access requirements. (65)

What Are the Parameters of Consular Communication and Access?

The Vienna Convention and other bilateral treaties require that consular officers be allowed to communicate with and have access to their citizens. (66) However, consular officials are not allowed to interfere with police investigations. Moreover, the law enforcement authorities are allowed to "make reasonable regulations about the time, place and manner of consular visits. Those regulations cannot, however, be so restrictive that the purpose of consular assistance is defeated." (67)

STATUTES, REGULATIONS, AND PROCEDURES

Article 36 of the Vienna Convention expressly leaves the exact manner of executing its provisions to the discretion of the individual nations. Paragraph 2 of Article 36 states that "The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving [Nation]." (68) It has long been held that the Vienna Convention and other bilateral consular agreements are self-executing and do not require any additional federal or state legislation to be implemented. (69) Accordingly, "executive, law enforcement, and judicial authorities can implement these obligations through their existing powers." (70)

The federal government and some states have enacted provisions offering law enforcement practical guidance regarding consular notification. (71) In 1970, the federal government established a uniform procedure for the U.S. Department of Justice regarding notification of consular officers upon the arrest of foreign nationals. (72) The procedure requires that "In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he does not wish such notification be given." (73) The federal regulation further instructs the arresting officer to advise the nearest U.S. attorney of the detainee's wishes regarding notification and requires the U.S. attorney to notify the appropriate consulate post. (74)

In January 2000, the state of California enacted legislation requiring "every peace officer, upon arrest and booking or detention for more than two hours of a known or suspected foreign national, shall advise the foreign national that he or she has a right to communicate with an official from the consulate of his or her country." (75) California further requires that "law enforcement agencies shall ensure that policy or procedure and training manuals incorporate language based upon provisions of the [Vienna Convention] that set forth requirements for handling the arrest and booking or detention for more than two hours of a foreign national pursuant to this section prior to December 31, 2000." (76)

Recognizing the interplay between domestic law enforcement and the international community, agencies now realize the need for education and training in this area. In fact, a written directive governing procedures for assuring consular notification compliance is now mandatory for accreditation with the Commission on Accreditation for Law Enforcement Agencies (CALEA). "This new standard is mandatory; it appears fourth on a list of approximately one thousand requirements of varying degrees of importance, right after the obligation to uphold the Constitution. Any U.S. law enforcement agency seeking or renewing CALEA accreditation will now be required to have a written consular notification and access directive." (77)

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In this regard, the Department of State has done much to educate and provide federal, state, and local law enforcement officials with the tools and resources necessary to fulfill these obligations. (78) The following resources from the Department of State are available, free of charge, to law enforcement and government agencies in the United States.

1) The Consular Notification and Access booklet (79) is a 72-page reference manual that explains and outlines the steps to be taken by law enforcement officers when arresting a foreign national. It also includes answers to commonly asked questions, provides suggested notification statements in English and 17 other languages, and lists all necessary contact information for foreign embassies and consulates in the United States.

2) Consular notification pocket cards are available as convenient, ready-references for individual officers.

3) "It's the Right Thing to Do" is an 11-minute roll-call training and reference video.

4) A CD-ROM contains all of the material listed above, a graphic presentation with talking points for officer training, and other helpful reference materials. (80)

CONCLUSION

The nature of criminal activity today and the diversity existing in U.S. communities can easily put law enforcement officers in the international spotlight. Recognizing the sensitive legal, political, and diplomatic issues triggered when interacting with foreign nationals is critical not only in ensuring compliance with the law but also in safeguarding how U.S. citizens are treated by foreign countries.

The concept of reciprocity is something a law enforcement officer may understandably neglect to consider in the heat of an ongoing investigation. Simply put, the manner and consistency with which law enforcement officers implement consular notification requirements in the United States has a reciprocal effect on the way American citizens may be treated if detained abroad. At this time in history, when international travel is commonplace and respect between governments is particularly crucial, it is more important than ever for U.S. officers to live by what some have called the "international golden rule," and consistently provide consular notification and access to all foreign nationals arrested or otherwise detained within the United States of America.

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Endnotes

(1) Vienna Convention on Consular Relations (hereafter Vienna Convention), Apr. 24, 1963, 21 U.S.T. 77; T.I.A.S. No. 6820; 596 U.N.T.S. 261.

(2) U.S. Department of State, Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them (Revised January 2003), at page 42 of a 72-page booklet, (hereafter Consular Notification and Access), http://www.travel.state.gov/law/notify.html.

(3) Id.

(4) Vienna Convention, supra note 1.

(5) William J. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies, 31 Vand. J. Transnat'l 257, 264 (1998), quoting from Luke Lee, Consular Law and Practice 3-7 (2nd ed., 1991), at 27. See also, Emily Deck Harrill, Exorcising the Ghost: Finding a Right and a Remedy in Article 36 of the Vienna Convention on Consular Relations, 55 S.C. L. Rev. 569 (2004).

(6) Vienna Convention, supra note 1.

(7) The multilateral Vienna Convention was completed on April 24, 1963; entered into force March 19, 1967; approved by the U.S. Senate on October 22, 1969; ratified by President Richard Nixon on November 12, 1969; and, officially became U.S. law as a treaty on December 24, 1969. Aceves, supra note 5, at 269-270.

(8) Aceves, supra note 5, at 269; quoting from Ex. E, 91st Cong., 1st Sess., at VII (Statement of Secretary of State William Rogers) (1969).

(9) Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2675 (U.S. 2006).

(10) Consular Notification and Access, supra note 2, at 42.

(11) Id. at 43-44.

(12) Id. at 42.

(13) Id. at 42-46. See, specifically, Articles 5, 36, and 37 of the Vienna Convention. Article 5 authorizes consular officers to assist its citizens and otherwise safeguard their interests. It further provides a "catch-all" provision allowing consular officials to perform any necessary functions not prohibited by law. Article 36 addresses consular notification and access rules, which is the topic of this article. Article 37 requires the host government to notify consular officials when their citizens experience a special need for assistance (e.g., in cases of death, vulnerability due to incompetence, and major accidents).

(14) Vienna Convention, supra note 1, at 100-101. In its entirety, Article 36 states:

"Article 36: Communication and Contact With Nationals of the Sending State

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph I of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."

(15) Id.

(16) Consular Notification and Access, supra note 2, at page 5.

(17) United States v. Hongla-Yamche, 55 F. Supp. 2d 74, 77 (D. Mass. 1999).

(18) U.S. CONST., Art. VI, cl. 2.

(19) See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (U.S. 2006); Medellin v. Dretke, 544 U.S. 916, 125 S. Ct. 2088, 161 L.Ed. 2d 982 (2005); and Breard v. Greene, 523 U.S. 371, 118 S. Ct. 1352, 140 L. Ed. 2d 529 (1998).

(20) Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (U.S. 2006); the case was argued on March 29, 2006, and decided on June 28, 2006.

(21) State v. Sanchez-Llamas, 108 P.3d 573 (Or. 2005), cert. granted in Sanchez-Llamas v. Oregon, 126 S. Ct. 620 (2005); Bustillo v. Johnson, 63 Va. Cir. 125 (Cir. Ct. 2003).

(22) Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(23) Sanchez-Llamas, supra note 20, at 2676-2677.

(24) Id. at 2677-2678.

(25) Id. at 2678.

(26) Id. at 2678-2679

(27) U.S. v. Jimenez-Nava, 243 F.3d 192 (5th Cir. 2001), cert. denied, 121 S. Ct. 2620, 150 L. Ed. 2d 773 (U.S. 2001) (Consular notification provisions of the Vienna Convention do not bestow on foreign nationals any private, judicially enforceable right.); U.S. v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001) (The Vienna Convention does not create in a detained foreign national a right of consular access. The court further noted that the preamble to the Vienna Convention expressly disclaims the creation of any individual rights.); Cardenas v. Dretke, 405 F.3d 244 (5th Cir. 2005); Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004); U.S. v. Banaban, 85 Fed. Appx. 395 (5th Cir. 2004); Diaz v. Van Norman, 351 F. Supp. 2d 679 (E.D. Mich. 2005); Mendez v. Roe, 88 Fed. Appx. 165 (9th Cir. 2004); Gordon v. State, 863 So. 2d 1215 (Fla. 2003); Rahmani v. State, 898 So. 2d 132 (Fla. Dist. Ct. App. 5th Dist. 2005), reh'g denied (Apr. 7, 2005); Rodriguez v. State, 837 So. 2d 478 (Fla. Dist. Ct. App. 5th Dist. 2002); Gomez v. Com., 152 S.W.3d 238 (Ky. Ct. App. 2004); and State v. Gegia, 157 Ohio App. 3d 112, 2004-Ohio-2124, 809 N.E.2d 673 (9th Dist. Summit County 2004). See Ann K. Wooster, Construction and Application of Vienna Convention on Consular Relations (VCCR), Requiring that Foreign Consulate Be Notified When One of its Nationals Is Arrested, 175 A.L.R. Fed. 243 (originally published 2002; updated 2006).

(28) Sanchez-Llamas, supra note 20, at 2674-2675 (Justice Ginsburg filed an opinion concurring in judgment with Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. However, Justice Ginsburg joined Justices Breyer, Stevens, and Souter in Part II of the dissenting opinion, which argued that Article 36 of the Vienna Convention grants individual rights to a foreign national that may be invoked in a judicial proceeding, an issue the majority opinion declined to decide.).

(29) U.S. v. Hongla-Yamche, 55 F. Supp. 2d 74 (D. Mass. 1999) (Article 36 of the Vienna Convention confers an individual right and, therefore, a detained individual has standing to challenge a violation.); Standt v. City of New York, 153 F. Supp. 2d 417, 175 A.L.R. Fed. 685 (S.D.N.Y. 2001) (The Vienna Convention provides for a private right of action that is enforceable by individuals through 42 U.S.C.A. [section]1983.); U.S. v. Briscoe, 69 F. Supp. 2d 738 (D.V.I. 1999), aff'd without published opinion, 234 F.3d 1266 (3rd Cir. 2000); U.S. v. Torres-Del Muro, 58 F. Supp. 2d 931 (C.D. Ill. 1999); U.S. v. Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999); and U.S. v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000), cert. denied, 531 U.S. 991, 121 S. Ct. 481, 148 L. Ed. 2d 455 (2000). See also, the LaGrand Case (F.R. G.v.U.S.), 2001 I.C.J. 466 (Judgment of June 27), and the Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31) (These cases are from international tribunals whose decisions are not binding, but may be persuasive, on U.S. courts). See Wooster, supra note 27.

(30) Sanchez-Llamas, supra note 20 at 2675.

(31) Id. at 2679, quoting from the Vienna Convention, supra note 14, Art. 36 para. 2.

(32) Id. at 2679.

(33) Id. at 2679. See also, U.S. Const. Art. II, [section] 2, cl. 2, which authorizes the president, with the advice and consent of the senate, to make treaties.

(34) Id. at 2681.

(35) Id.

(36) Id. at 2682.

(37) Id.

(38) Id. at 2683. See also, Wong Wing v. United States, 163 U.S. 228, 238, 16 S. Ct. 977, 41 L. Ed. 140 (1896) ("[A]ll persons within the territory of the United States are entitled to the protections guaranteed by" the Fifth and Sixth Amendments).

(39) Id. at 2675.

(40) Breard v. Greene, 523 U.S. 371, 118 S. Ct. 1352, 140 L. Ed. 2d 529 (1998) (per curiam).

(41) The LaGrand Case (F.R. G.v.U.S.), 2001 I.C.J. 466, 40 I.L.M. 1069 (2001), and the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. No. 128, 43 I.L.M. 581 (2004).

(42) See Id., LaGrand Case, para. 91, and the Avena Case para. 113.

(43) Id.

(44) Sanchez-Llamas, supra note 20, at 2684, footnote 4. Also see Statute of the International Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 993 (1945), (quoted by the Court as stating that the ICJ's decisions have "no binding force except between the parties and in respect of that particular case." Additionally, the Court noted that on March 7, 2005, the United States gave notice of its withdrawal from the Optional Protocol Concerning the Compulsory Settlement of Disputes, which granted for disputes about the interpretation or application of the Vienna Convention to fall within the compulsory jurisdiction of the ICJ).

(45) Id. at 2687.

(46) Id.

(47) Id. at 2688.

(48) Id. at 2689.

(49) Id. at 2688-2689.

(50) Consular Notification and Access, supra note 2.

(51) Id. at 18.

(52) Consular Notification and Access, supra note 2, at 18.

(53) However, the Department of State encourages judicial officials and prosecutors to make adequate inquiries to ensure that consular notification requirements have been complied with. See Id. at 18-19.

(54) Vienna Convention, supra note 14, Art. 36, para. 1, sub. para. (b).

(55) Consular Notification and Access, supra note 2, at 19.

(56) Id.

(57) Vienna Convention, supra note 15, Art. 36, para. 1, sub. para. (b).

(58) Consular Notification and Access, supra note 2, at 20.

(59) Id. The Department of State expects that notification to consular officials be made within 24 hours and no later than 72 hours. As mentioned earlier, some of the United States bilateral consular treaties mandate that their government's consular officials be notified whenever a citizen of their country has been arrested or detained, irrespective of the detainee's wishes. The Department of State has a list of these countries on their Web site and provides the same in the resource materials noted in this article, including the pocket cards. Many of the mandatory notification countries require that notification take place "immediately" but then qualify this requirement by adding words such as, "but not later than 2 calendar days after arrest." Once law enforcement officers have determined that they have arrested a foreign national from a mandatory notification country, they should inform the detainee that their government officials will be notified of the detention. (For a further description of these bilateral agreements see Consular Notification and Access, supra note 2, at 47-49.

(60) These sample statements are included on the consular notification pocket cards, and the Department of State has had them translated into at least 17 different languages. See Consular Notification and Access, supra note 2, at 27-39.

(61) Statement 1, "When Consular Notification is at the Foreign National's Option," reads as follows: As a non-U.S. citizen who is being arrested or detained, you are entitled to have us notify your country's consular representatives here in the United States. A consular official from your country may be able to help you obtain legal counsel, and may contact your family and visit you in detention, among other things. If you want us to notify your country's consular officials, you can request this notification now, or at any time in the future. After your consular officials are notified, they may call or visit you. Do you want us to notify your country's consular officials? See Consular Notification and Access, supra note 2, at 25.

(62) Statement 2, "When Consular Notification is Mandatory," reads as follows: Because of your nationality, we are required to notify your country's consular representative here in the United States that you have been arrested or detained. After your consular officials are notified, they may call or visit you. You are not required to accept their assistance, but they may be able to help you obtain legal counsel and may contact your family and visit you in detention, among other things. We will be notifying your country's consular officials as soon as possible. See Consular Notification and Access, supra note 2, at 25.

(63) Consular Notification and Access, supra note 2, at 21.

(64) Copies of the Department of State's "Suggested Fax Sheet for Notifying Consular Officials of Arrests or Detentions" can be found on page 9 of the Consular Notification and Access booklet, supra note 2, or at the U.S. Department of State Bureau of Consular Affairs Web site at http://www.travel.state.gov/law/consular/consular_753.html.

(65) Consular Notification and Access, supra note 2, at 14.

(66) See Vienna Convention, supra note 14, Art. 36, para. 1(a), (b), and (c).

(67) Consular Notification and Access, supra note 2 at 22-23.

(68) See Vienna Convention, supra note 14.

(69) See S. Exec. Rep. No. 91-9, p5 (1969); see also Foster v. Neilson, 2 Pet. 253, 314, 7 L. Ed. 415 (1829) (Chief Justice Marshall explained that under the Supremacy Clause a treaty is "to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." Referenced in the dissenting opinion in Sanchez-Llamas, supra note 20, 2695-2696 (U.S. 2006).

(70) Consular Notification and Access, supra note 2, at 44.

(71) For an extensive, up-to-date review of the various statutes and regulations regarding consular notification and access see Mark Warren, Consular Notification: Statutory and Regulatory Provisions, http://www3.sympatico.ca/aiwarren/compliance.htm#State_Codes. Examples include Federal Regulations: U.S. Department of Justice--28 C.F.R. [section] 50.5(a); Bureau of Immigration and Customs Enforcement--8 C.F.R. [section] 236.1(e); Military Regulations--AR 27-52; Internal Revenue Service--Internatl. Revenue Manual 9.4.12.9; and State Regulations (To date, only 3 U.S. states have codified consular notification and access obligations): Florida--Recognition of International Treaties Act (1965), Chapter 901.26 (This is the oldest state statute in this area and actually predates U.S. ratification of the Vienna Convention. Of note, the Florida statute was amended in 2000 to state that "Failure to provide consular notification under the Vienna Convention on Consular Relations or other bilateral consular conventions shall not be a defense in any criminal proceeding against any foreign national and shall not be cause for the foreign national's discharge from custody." As quoted in Warren, supra this note.); California--California Penal Code [section] 834c (1999) and [section] 5028 (2004) (Although the California statute requires compliance with the Vienna Convention, it does not expressly provide any remedies for a breach of the statute); Oregon--Oregon Revised Statutes (2003) (The Oregon statute generally states that officers must "understand the requirements" of the Vienna Convention; however, it expressly states that officers cannot be held civilly or criminally liable, and that exclusion of evidence is not a remedy, for failing to provide consular notification.)

(72) 28 C.F.R. [section] 50.5.

(73) Id. sub. para. (a)(1).

(74) Id. sub. para. (a)(3).

(75) Cal. Penal Code [section] 834c. para. (a)(1).

(76) Id. para. (c).

(77) Warren, supra note 71, under Law Enforcement Accreditation Standards. See also, U.S. Department of State Bureau of Consular Affairs Web site at http://www.travel.state.gov/law/consular/consular_2244.html.

(78) Since 1998. experts from the Department of State have provided more than 400 free training classes and seminars about consular notification and access to federal, state, and local officials in 36 states and territories. They have also distributed more than 1,000,000 pieces of consular notification and access instructional materials and published several articles targeting the law enforcement community. See the Department of State Bureau of Consular Affairs Web site at http://www.travel.state.gov/law/consular/consular_2244.html.

(79) Consular Notification and Access, supra note 2.

(80) Id. These resource materials are available for review and may be ordered online at the U.S. Department of State Bureau of Consular Affairs Web site at http://www.travel.state.gov/law/consular/consular_726.html. Resources also can be ordered directly from the Office of Policy and Public Affairs, CA/P, Room 4800, Bureau of Consular Affairs, U.S. Department of State, Washington, DC 20520; telephone: (202) 647-4415; fax: (202) 736-7559; e-mail: consnot@state.gov.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

By JONATHAN L. RUDD, J.D.
COPYRIGHT 2007 Federal Bureau of Investigation
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2007, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:Legal Digest
Author:Rudd, Jonathan L.
Publication:The FBI Law Enforcement Bulletin
Date:Jan 1, 2007
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