Amicus Curiae Brief — Medellin v. Dretke
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LOFFIce OF TH
E
No. 04-5928 ERK
IN THE
Supreme Court of the United States
JOSE ERNESTO MEDELLIN,
Petitioner,
Vv.
DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF AMICUS CURIAE OF AMBASSADOR L.
BRUCE LAINGEN AND LIEUTENANT COLONEL
JOHN J. SWIFT, ET AL., IN SUPPORT OF
PETITIONER
JOSEPH MARGULIES
MACARTHUR JUSTICE CENTER
UNIVERSITY OF CHICAGO LAW SCHOOL
1111 EAST 60™ STREET CHICAGO, IL 60637
Telephone: (773) 702-9560
Counsel for Amici
TABLE OF CONTENTS
Page
I. The United States Played A Leading Role
In Developing The International Protections
Provided By Both The Vienna Convention
Failure To Provide Vigorous And Robust
Enforcement Of The Vienna Convention
Could Have Grave Consequences For U.S.
TABLE OF AUTHORITIES
Page(s)
CASES:
Breard v. Pruett,
134 F.3d 615 (408s Cie. 199%). ....ccccsssssnsensmansensneeenane 22
Case Concerning United States Diplomatic and
Consular Staff in Tehran,
(U.S.A. v. Iran), 1980 L.C.J. 3
(Judgment Of May 24) ....::c«ssssesosssssntosssessnnnnieninanna 14
Flores v. State,
994 P.2d 782 (Okla. Crim. App. 1999) .........cceeeeeees 23
Standt v. City of New York,
153 F. Supp. 2d 417 (S.D.N.Y. 2001)................... 21-22
U.S. v. Carillo
70 F. Supp. 2d 854 (N.D. DD. 1999) ween 22
TREATIES:
Vienna Convention on Consular Relations,
April 24, 1963,
21 U.S.T. 77, S96 UR B08 accsssncseee passim
Optional Protocol Concerning the Compulsory
Settlement of Disputes, April 24, 1963,
21 U.S.T. 325, S96 UNTS 467 ooccctssaceen passim
OTHER SOURCES:
Ann Scott Tyson, Where's Gao? Disappeared in China:
100 days and counting, Christian Science
a secnesenene 25
Application Instituting Proceedings and Pleadings,
Treatment in Hungary of Aircraft and Crew of
United States of America, (1.C.J. Pleadings
Budapest v. U.S., N.Y. Times, December 9, 1951, at 168,
http://www. il.proquest.com/proquest/(ProQuest
Historical Newspapers, N.Y. Times (1851-
EES SESS EES a a 1]
Bureau of Consular Affairs, U.S. Department of State,
Consular Notification and Access, Instructions
for Federal, State, and other Local Law
Enforcement and Other Officials Regarding
Foreign Nationals in the United States and the
Rights of Consular Officials To Assist Them
(no date of publication available), available at
http://travel.state.gov/law/notificationS.html............9
Bureau of Resource Management, U.S. Department of
State, FY 2003 Performance and Accountability
Report (2003), available at
http://www.state.gov/m/rm/rls/perfrpv/
EET LE 16
iV
The Federalist No. 64
(Clinton Rossiter ed., 2003)...............cccrsscccssssscseseees 25
Frank Green, Mission Chief Urges Allen to Commute
Sentence, Richmond Times-Dispatch, Sept. 17,
H.R. Res. 160, 107th Cong. (2001).................sscccssssereceeeerees 25
International Court of Justice List of Cases brought
before the Court since 1946, available at
RP Bie GIR ccctesensasnestniniieniinnignanaaeinnnndets 10
Kevin Herbert, The Terrorist Threat to the American
Presence Abroad: A Report of a Consultation
of The Critical Incident Analysis Group and The
Institute for Global Policy Research, Part Il. 2.
Threat to Citizens Overseas, University of
Virginia, April 12-13, 1999, available at
http://www.healthsystem. virginia.edu/internev/
ciag/reports/report_terr_citizens.cfM.............:c000008+ 16
Letter from Madeleine Albright, Secretary of State,
U.S. Department of State, to Victor Rodriguez,
Chairman of the Texas Board of Pardons and
oN eee 19
Linda Greenhouse, Court Weighs Execution of
Foreigner, New York Times, April 14, 1998,
Louis Henkin, How Nations Behave
RARDIN IES Oe emacs oe AS 16
Memorial of the United States, United States
Diplomatic and Consular Staff in Tehran,
eens SIE SIA scunssniensvecinnteienpisuphitiiiepiabadenntea 7
Office of Overseas Citizens Services, Bureau of Consular
Affairs, U.S. Department of State, Department of
State Publication 10252, Overseas Citizens
UN i a 16
Paul Watson, India Roiled by Internet Sex Case.
Los Angeles Times, December 22,
Press Release, U.S. Department of State,
Statement by Secretary Acheson, (December 28,
1951), in 26 Department of State Bulletin 7
Press Release, U.S. Department of State,
U.S. Applications in C-47 Case Removed
From Calendar of ICJ, (July 16, 1954), in
31 Department of State Bulletin
Ee Ce ee cniccstisniscniensiteecianainsiciinsstabiandiaideilagiastiinss 14
Press Release, U.S. Department of State,
U.S. Asks Return of Property Seized in 1951 Plane
Incident, (December 10, 1952), in 27 Department
of State Bulletin 980, 980-84 (1952)............cccceeeeee 12
v1
Press Release, U.S. Department of State,
U.S. Orders Closing of Hungarian Consulates,
(December 29, 1951), in 26 Department of State
gs. REESE ere a
Press Release, U.S. Department of State,
U.S. Seeks Release of American Fliers Held
in Hungary, (December 28, 1951), in 26
Department of State Bulletin 7 (1952)...................
Press Statement by James P. Rubin, Spokesman,
U.S. Department of State (Apr. 15, 1998)..............
Press Statement by James P. Rubin, Spokesman,
U.S. Department of State (Nov. 4, 1998).................
Press Statement by R. Nicholas Burns, Spokesman,
U.S. Department of State (Sept. 29, 1995).............
Rajesh Mahapatra, Court Grants Bail to eBay's Indian
Exec, Associated Press, December 21, 2004,
available at http://wtop.com/index.php?nid
SIT FO rscscotncnivesseccasmninsesnninitdannnnnncssiine:
Report on the United States Delegation to the United
Nations Conference on Consular Relations,
Vienna, Austria, March 4 to April 22, 1963,
reprinted in S. Exec. Doc. E, 91st Cong..,
BOE REG... FE Dp TP eccactensestccstisenmietaboeicinninnl passim
Vii
Restatement (Third) of Foreign Relations Law of the
United States §321 cmt. a (1987)............cccccceeeeeeees
S. Babcock, The Role of International Law in United
States Death Penalty Cases, 15 LJIL 367, 376
S. Lynn Walker, Okla. case pits U.S. against World
Court, San Diego Union-Tribune, May
7, 2004, available at
http://www.signonsandiego.com/uniontrib/2004
0507/news_In7penalty.html...............cccccceeeeeeees
Statement by Senator Theodore F. Green,
U.S. Representative to the General Assembly,
United States Department of State, Soviet
Harassment of Foreign Diplomats,
(October 29, 1952), in 27 Department of State
UT FOE CRP ap ovvcccncestnssncsccsiinnbetieignccenevetanctzs
Telegram to all U.S. diplomatic and consular posts
abroad concerning consular assistance for
American nationals abroad, U.S. Department of
State, January 1, 2001, available at
www.state.gOv/S/1/16139.DUM............cccceceeeeeeees
U.S. Air Crew Fined, Hungarian Border “Violation,”
30,000 Dollars Each, London Times,
NT DO, Bees, CO Gicnctrnccicllitannteciadiniescintnentitandll
Vili
U.S. Department of State Foreign Affairs Manual
US Family Detained in China, BBC News, Mar. 21,
2001, available at http://news.bbc.co.uk/2/hi/
aSia-Pacific/ 1233 163.StM..........ccceceeseceeeseeeseeseseees 24
U.S. Promises Action to Free Seized Fliers,
Washington Post, December 4, 1951, at 1,
available at http://www. il.proquest.com/
proquest/ (Washington Post (1877-1988)).............. 1]
U.S. Urges the Iranians to Obey Court Decision,
New York Times, May 25, 1980, at 9.000.000... cece 15
l
INTEREST OF AMICI CURIAE'
Amici are either U.S. citizens who have benefited from
consular assistance abroad or suffered in its absence;
attorneys or diplomats familiar with the importance of
consular assistance; or organizations dedicated to the
interests of U.S. citizens abroad.
Ambassador L. Bruce Laingen served in the United
States Foreign Service from 1949 to 1987. His tours of
service included assignments in Germany, Iran, Pakistan,
and Afghanistan. He served as U.S. Ambassador to Malta
from 1977-1979. In mid-1979, he returned to Iran for a
second term as Chargé d’ Affaires of the American Embassy
before being held hostage in the Iran Hostage Crisis from
November 4, 1979 to January 20, 1981. During the Hostage
Crisis, the United States sought and secured a judgment
against Iran from the International Court of Justice based on
Iran’s violation of the Vienna Convention on Consular
Relations. Ambassador Laingen holds the Award for Valor
from the Department of State, as well as the Distinguished
Public Service Medal from the Department of Defense.
Lieutenant Colonel John J. Swift was a career
member of the United States Air Force. On November 19,
1951, he was flying between Munich and Belgrade with
three other American servicemen: co-pilot Dave H.
Henderson; Engineer Sergeant Jess A. Duff; and Radio
' Counsel for all parties have consented in writing to the filing of this
brief, and amici have filed those consents with the Clerk of the Court.
No counsel for a party in this case authored this brief in whole or in part,
and no person or entity, other than the undersigned amici and their
counsel, has made a monetary contribution to this brief’s preparation and
submission.
2
Operator Sergeant James A. Elam. During the flight, Soviet
e,ficials forced the aircraft to land in Hungary. Soviet and
Hungarian officials captured and interrogated the men,
deliberately concealing them from the United States for
several weeks. The men were ultimately convicted of
illegally entering Hungarian airspace in secret proceedings
by a Hungarian military tribunal. At no point was Captain
Swift or any of the other fliers allowed access to American
consular officials, despite their own as well as U.S. protests.
The airmen were finally released into American custody on
December 28, 1951, but only after the United States agreed
to pay the fines levied by the Hungarian military tribunal.
Mr. Swift served in the U.S. Air Force until he retired with
the rank of Lieutenant Colonel in 1968. Lieutenant Colonel!
Swift currently resides in New York and Florida.
Thomas R. Dawson served as a Peace Corps
volunteer in Iran in 1966. On the way to attending a Peace
Corps Conference in September of that year, Mr. Dawson
and a fellow volunteer decided to explore the shore of the
Caspian Sea in Astara, Iran, which was close to Soviet
territory. Mr. Dawson unwittingly crossed over the
unmarked border into Soviet territory, and he was promptly
captured by armed soldiers, taken into custody, and
interrogated for several days. He repeatedly pleaded with his
captors to allow him contact with the American consulate,
but to no avail, until the tenth day of his captivity when he
was finally allowed contact with American officials. Mr.
Dawson was eventually released to Iranian authorities, who
delivered him to the American embassy in Tehran. Mr.
Dawson completed his service in the Peace Corps in
Micronesia, without further incident. He and his wife live in
Annapolis, Maryland, where they own and operate an art
gallery.
Billy Hayes is a filmmaker, producer and writer
based in Los Angeles, California. Mr. Hayes spent five
years in a Turkish prison during the 1970s, an ordeal
described in his book, Midnight Express, which was made
into a feature motion picture by the same name. Prompt
notification of the U.S. Consulate ensured that Mr. Hayes
was able to retain a lawyer, while regular consular visits
throughout his incarceration provided an essential and
reliable link to the outside world.
Richard Atkins practices law in Philadelphia,
Pennsylvania, and has specialized for more than twenty years
in assisting American citizens who run afoul of the jaw in
foreign countries. He has testified before the Senate Foreign
Relations Committee on international prisoner transfer
agreements and wrote a guide to prisoner transfer treaties for
the United Nations. Approximately a thousand incarcerated
Americans abroad have been freed or returned with his
assistance.
William D. Rogers served as Assistant Secretary of
State for Inter-American Affairs from 1974-1976, and Under
Secretary of State for Economic Affairs from 1976-1977.
During his lengthy career as a diplomat, he played a key role
in Secretary of State Kissinger’s negotiations to end white
rule in Rhodesia (now Zimbabwe), participated in the final
Panama Canal Treaty negotiations, was special emissary for
President Carter to El Salvador in 1980, co-chaired the
Bilateral Commission on the Future of U.S. Mexican
Relations, and was Senior Counsel to the National Bipartisan
Commission on Central America. He has also served as
President of the Center for Inter-American Relations in New
4
York, and as President of the American Society of
International Law.
Founded in Geneva in 1978, American Citizens
Abroad (ACA) is a non-profit, non-partisan organization
dedicated to serving and defending the interests of U.S.
citizens living outside the United States. ACA works closely
to assist the U.S. Government in developing cohesive
national policies dealing with Americans overseas. The
organization has members in over 90 countries worldwide.
Established in 1973, ic Association of Americans
Resident Overseas (AARO) is a volunteer, non-partisan
service organization representing the interests of more
than 4.1 million Americans living and working abroad. Its
mission is to ensure that Americans resident overseas are
guaranteed the same rights and privileges as their U.S.
counterparts. AARO has worked to change U.S. laws and
policies so that Americans abroad receive the same benefits
and protection as citizens in the United Statés.
Founded in 1931, the Federation of
American Women's Clubs Overseas (FAWCO) is a non-
partisan network of 74 independent organizations in 34
countries around the world, with over 17,000 members.
FAWCO is a non-profit U.S. corporation and a recognized
NGO with special consultative status to the UN Economic
and Social Council. Among its stated purposes is to defend
the rights of all Americans overseas.
Amici stress that we take no position in this brief on the
moral or legal propriety of capital punishment in the abstract,
or whether a sentence of death is an appropriate sanction for
Mr. Medellin. Some of the amici are opposed to the death
5
penalty, and some are not. All are in agreement, however,
that the failure by the lower court to give a vigorous and
robust scope to the protections of the Vienna Convention on
Consular Relations will ultimately, and inevitably, endanger
the welfare of United States citizens abroad.
SUMMARY OF ARGUMENT
Every year, a significant number of United States
citizens traveling or living overseas find themselves ensnared
in the criminal justice system of a foreign government.
Consular assistance provides a vital service to these
Americans, maintaining a desperately needed link to the
outside world, and helping them navigate and understand an
unfamiliar, and perhaps hostile, legal system.
The United States played a leading role in creating
Article 36 of the Vienna Convention on Consular Relations,
which ensures that consular officers will be allowed to
perform this important service. Article 36 obligates Member
States to notify detainees of their right to seek consular
assistance, and to permit consular access to the detainee. But
if officials in this country fail to provide foreign nationals
with the full benefit of consular assistance, it is inevitable
that U.S. citizens abroad will soon suffer a similar, reciprocal
fate. Indeed, nothing presents a greeter threat to consular
assistance abroad than the failure by officials in this country
to grant reciprocal assistance at home.
The United States also played a leading role in drafting
the Optional Protocol Concerning the Compulsory
Settlement of Disputes, which established the compulsory
jurisdiction of the International Court of Justice in disputes
involving parties to the Convention. The United States has
6
frequently recognized the International Court of Justice (ICJ)
as a proper forum to adjudicate disputes between states. In
fact, it has invoked the jurisdiction of the World Court more
often than any country in the world. Of particular
significance to this dispute, the United States brought an
action in 1979, following the Tehran hostage crisis. The
action challenged, inter alia, Iran’s failure to comply with
Article 36 of the Convention. Under these circumstances,
the United States cannot be heard to denigrate or discount
the recent judgment of the International Court of Justice in
Avena.
The failure by the lower court to provide meaningful
review and reconsideration of Mr. Medellin’s conviction and
sentence is inconsistent with the leading role taken by the
United States in creating the Convention. It is also at odds
with its steadfast determination to accept the jurisdiction of
the International Court of Justice. But more ominously, if
the judgment below is allowed to stand, it is inevitable that
U.S. citizens abroad will soon suffer in kind.
ARGUMENT
L.
The United States Played A Leading Role In
Developing The Legal Protections Provided By Both
The Vienna Convention And the Optional Protocol
The United States has long recognized what can
scarcely be gainsaid: the Vienna Convention on Consular
Relations (Convention) provides vital safeguards to persons
? April 24, 1963, 21 U.S.T. 77, 596 UNTS 261.
7
imprisoned by a contracting State.’ But equally clear, and no
less important, is the leading role the United States played in
securing these essential protections. Both the Convention
and the Optional Protocol Concerning the Compulsory
Settlement of Disputes (Optional Protocol)* are substantially
the product of U.S. leadership.
The Convention codified the pre-existing law on
consular relations between States, an area that had previously
been regulated “mainly by bilateral agreements or other less
formal arrangements and by national laws.”° In that respect,
> See, e.g, Memorial of the United States, Case Concerning United
States Diplomatic and Consular Staff in Tehran, 1.C.J. Pleadings 1980, p.
174 (“A principal function of the consular officer is to provide varying
kinds of assistance to nationals of the sending State, and for this reason
the channel of communication between consular officers and nationals
must at all times remain open. Indeed, such communication is so
essential to the exercise of consular functions that its preclusion would
render meaningless the entire establishment of consular relations.”); U.S.
Department of State telegram to all U.S. diplomatic and consular posts
abroad concerning consular assistance for American nationals abroad,
January 1, 2001, available at http://www.state.gov/s//16139.htm
(“Consular notification of and access to a detained or arrested U.S.
citizen has long been crucial to providing basic protective services
abroad. .. Protesting unreasonable delays in consular notification is not
discretionary but has long been an integral element of U.S. policy to
provide protective consular services to detained Americans overseas.”’)
* April 24, 1963, 21 U.S.T. 325, 596 UNTS 487.
* Report of the United States Delegation to the United Nations
Conference on Consular Relations, Vienna, Austria, March 4 to April 22,
1963, reprinted in S. Exec. Doc. E, 91" Cong., 1* Sess., May 8, 1969, at
41 (hereinafter “Report’’).
8
the Convention brought unity to this multiplicity by forging a
single, global agreement on consular relations, thereby
“contribut{ing] to the promotion of friendly relations
between nations.”® The United States actively participated in
creating this agreement, and took a substantial part in
drafting Article 36, the text of which was agreed to “after
much debate.”
Significantly, the United States recognized even before
ratification that vigorous enforcement of Article 36 would
provide important reciprocal benefits to U.S. citizens
overseas. The Report of the U.S. Delegation to the United
Nations Conference on Consular Relations notes that Article
36(1)(b), which requires that “[arresting] authorities shall
inform the person concerned without delay of his rights
under this sub-paragraph,”* establishes a “requirement which
is not beyond means of practical implementation in the
United States, and, at the same time, is useful to the consular
service of the United States in the protection of our citizens
abroad.””
While the Convention therefore represents an
important codification of the obligation to provide consular
* Report at 41.
” Report at 59.
* Convention, art. 36(1 (a).
* Report at 60. Elsewhere, the Report notes that “[t}he standard of
treatment required by the present Convention conforms in all essential
respects to the views of the United States as to what is or should be
required by international law and practice. /d. at 74.
9
notification, the United States additionally recognizes that
consular notification is not dependent upon the legal
protections of the Convention alone:
Consular notification is in our view a universally
accepted, basic obligation that should be extended even
to foreign nationals who do not benefit from the VCCR
or from any other applicable bilateral agreement. Thus,
in all cases, the minimum requirements are to notify a
foreign national who is arrested or detained that the
national’s consular officials may be notified upon
request; to so notify consular officials if requested; and
to permit consular officials to provide consular
assistance if they wish to do so.'°
The United States likewise played an integral role in
drafting the Optional Protocol, which provides in relevant
part that any “[dJisputes arising out of the interpretation or
application of the Convention shall lie within the
compulsory jurisdiction of the International Court of Justice
and may acc-rdingly be brought before the Court by an
application made by any party to the dispute being a Party to
the Present Protocol.”'' Indeed, this language derives
substantially from the original proposal of the United States,
‘© Bureau of Consular Affairs, U.S. Department of State, Consular
Notification and Access, Instructions for Federal, State, and other Local
Law Enforcement and Other Officials Regarding Foreign Nationals in the
United States and the Rights of Consular Officials To Assist Them 44
(no date of publication available, “{t}he Department of State expects to
update it every 2-5 years”), available at
http://travel.state. gov/law/consular/consular_744 html.
'' Protocol, art. 1 (emphasis added).
10
which provided that “[a]ny dispute arising from the
interpretation or application of this Convention shall be
submitted at the request of either of the parties to the
International Court of Justice unless an alternative method of
settlement is agreed upon.”'” At the Conference, the United
States voted against a motion by the Yugoslav delegation
that would have weakened the compulsory jurisdiction of the
ICJ.'° While the final language of the Protocol is slightly
different than the language proposed by the United States, it
clearly provides for the compulsory jurisdiction of the ICJ,
precisely as urged by the United States.
That the United States would have argued so
assiduously for an Optional Protocol that provided for the
compulsory jurisdiction of the ICJ should come as no
surprise: the United States has been involved in more cases
at the ICJ than any other nation in the world, and has
invoked the jurisdiction of the World Court more often than
any other State.'* Two such actions, however, are of
particular interest to amici.
On November 19, 1951, a C-47 cargo aircraft of the
'* Report at 72.
'? The Yugoslav delegation proposed adding a paragraph to the U.S.
proposal, providing that “[aJmy contracting party may, at the ume of
signing or ratifying this Convention or of acceding thereto, declare that it
does not consider itself bound by paragraph |, of this article [the United
States proposal]. The other contracting parties shall not be bound by the
said paragraph with respect to amy contracting party which has
formulated such a reservation.” Jd. at 73.
'* The official website for the ICJ lists all cases from 1946 to the present.
See http://www .icj-cij.org/icywww/idecisions.htm.
11
85" Air Depot Wing of the U.S. Air Force carrying four
American airmen was making a routine flight from Erding
Air Force Base in Germany to Belgrade, Yugoslavia. During
the flight, the plane accidentally crossed into Hungarian
airspace and was “brought down by Soviet authorities in
Hungary and subsequently turned over with its crew to
Hungarian authorities.”'* American authorities searched in
vain for the missing fliers until December 2, 1951, when
Russia’s Tass news agency revealed that the aircraft and its
crew had been in Hungarian and Soviet custody since its
disappearance.'® Although U.S. State Department officials
immediately sought the release of the fliers, Hungarian
officials would not permit it, nor, despite repeated requests,
would they let American officials speak with the men.’
'® Press Release, United States Department of State, U.S. Asks Return of
Property Seized in 1951 Plane Incident, (December 10, 1952), in 27
Department of State Bulletin 980, 980-84 (1952).
'® Budapest v. U.S., N.Y. Times, December 9, 1951, at 168 available at
http://www.il.proquest.com/proques (ProQuest Historical Newspapers,
N.Y. Times (1851-2000)); see also, U.S. Promises Action to Free Seized
Fliers, Washington Post, December 4, 1951, at 1, available at
http://www.il. proquest.com/proques’ (ProQuest Historical Newspapers,
Washington Post (1877-1988)):
Also expected is a protest over the fact that the Communist
authorities kept silent for nearly two weeks while search planes
combed Yugoslavia... Press Officer Lincoln White said at the
State Department that the Soviet charges are ‘apparently a
cover-up for the fact that despite repeated representations by the
American Chargé d’Affaires at Budapest, George Abbott,
requesting information concerning the plane, the Hungarian
authorities repeatedly said they had no information.
'? Press Release, U.S. Department of State, U.S. Seeks Release of
American Fliers Held in Hungary, (December 28, 1951), in 26
12
On December 23, 1951, Hungary announced that the
four men had been tried in secret by a Hungarian military
court and sentenced to a fine of almost $30,000 each, or
three months imprisonment, for “intentionally violating the
Hungarian border.”'*® “The trial was secret, and the United
States was given no opportunity to be present through any
representative....”'” In a speech given to the United Nations
the following year, Senator and U.S. Representative to the
General Assembly Theodore Green observed:
What concerns us most here is the stubborn and
implacable manner in which both Soviet and
Hungarian officials refused U.S. representatives
repeated requests for access to the airmen. Not only
this, but both our diplomats and the airmen were
prevented from obtaining their own legal counsel in
the trial which took place.”°
Department of State Bulletin 7 (1952).
'® U.S. Air Crew Fined, Hungarian Border “Violation,” 30,000 Dollars
Each, London Times, December 24, 1951, at 4, available at
http://www.galegroup.com/Times/ (Times of London Digital Archive,
1785-1985).
'® Press Release, U.S. Department of State, U.S. Asks Return of Property
Seized in 1951 Plane Incident, (December 10, 1952), in 27 Department
of State Bulletin 980, 980-84 (1952).
*° Statement by Senator Theodore F. Green, U.S. Representative to the
General Assembly, United States Department of State, Soviet
Harassment of Foreign Diplomats, (October 29, 1952), in 27 Department
of State Bulletin 787 (1952).
13
Hungary released the American airmen on December
28, 1951. Upon their release, the United States promptly
closed the Hungarian consulates in New York and Cleveland
and barred Americans from traveling to Hungary.”'
Secretary of State Dean Acheson placed the blame for this
retaliation squarely upon Hungary’s failure to “live up to the
accepted standards of international practice with regard to
the right of consular officers to exercise protective functions
in behalf of nationals of their country.”””
The incident also provided the occasion for this
country’s first litigation in the World Court. On March 17,
1954, the United States initiated proceedings at the ICJ
against Hungary and the Soviet Union, claiming the failure
to allow consular access and assistance had deprived the
United States and its citizens of their respective right to
provide and receive consular assistance. “International law,”
the United States correctly observed, “recognizes the right of
the government in such matters to act on behalf of its
nationals and is applied in Hungarian judicial practice.””*
Significantly, the cases against Hungary and the Soviet
*! Press Release, U.S. Department of State, U.S. Orders Closing of
Hungarian Consulates, (December 29, 1951), in 26 Department of State
Bulletin 7 (1952).
* Press Release, U.S. Department of State, Statement by Secretary
Acheson, (December 28, 1951), in 26 Department of State Bulletin 7
(1952).
* Application Instituting Proceedings and Pleadings (U.S. v. Hungary;
U.S. v. U.S.S.R.), 1953 LCJ. Pleadings, (Treatment in Hungary of
Aircraft and Crew of United States of America) Annex | at 36 (February
16, 1954).
14
Union could not proceed because those countries refused to
accept the World Court’s jurisdiction. Upon the removal of
the case from the Court’s docket, the United States lamented:
This conduct on the part of the two defendant
Governments merely demonstrates again that they
have no compunctions in publicly asserting principles
of international law and order but in then refusing to
permit those principles to be applied to their own
conduct. The U.S. Government must of course accept
the decision of the International Court of Justice. -
The United States returned to the ICJ in 1979 when it
submitted an application to the World Court against the
Islamic Republic of Iran “concerning the seizure and holding
as hostages of members of the United States diplomatic and
consular staff and certain other United States nationals.””° In
its application, the United States accused Iran of several
treaty violations, including violations of Article 36 of the
Convention, and requested that the ICJ “adjudge and
declare” that Iran was under a “particular obligation
immediately to secure the release of all United States
nationals currently being detained.”*° The ICJ indicated
provisional measures against Iran on December 15, 1979,
and entered a final judgment in favor of the United States
* Press Release, U.S. Department of State, U.S. Applications in C-47
Case Removed From Calendar of ICJ, (July 16, 1954), in 31 Department
of State Bulletin 130 (1954).
** Case Concerning United States Diplomatic and Consular Staff in
Tehran (U.S.A. v. Iran), 1980 1.C.J. 3 (Judgment of 24 May).
© Id at 6.
15
May 24, 1980. Thereafter, the United States insisted the
decisions of the ICJ were binding in all res , and that
Iran must comply with the Court’s judgment.
In sum, having played a prominent role in drafting the
Convention, having successfully led the international charge
for the compulsory jurisdiction of the ICJ, and having sought
relief from that Court more than any other country, the
United States cannot be heard now to disparage or discount
its judgment.
Il.
Failure To Provide Vigorous And Robust
Enforcement Of The Vienna Convention Could
Have Grave Consequences For U.S. Citizens Abroad
In a legal system that has no independent enforcement
mechanism, the integrity-of the process depends on nothing
less than the acceptance of mutually shared obligations.
Behind this acceptance is the essential lesson of diplomatic
experience: so long as they are abie, nations will respond in
kind-to the treatment they receive. This notion of reciprocity
is both an inescapable reality, and the animating force to a
bedrock principle of international law — pacta sunt servanda
(“pacts must be respected”) - which captures the
requirement that nations must observe their agreements in
”” U.S. Urges the Iranians to Obey Court Decision, N.Y. Times, May 25,
1980, pg. 9: “The State Department said today that the decision by the
International Court of Justice ordering Iran to release the American
hostages and pay compensation to the United States was binding on Iran,
and it called on the Teheran Government to carry out its provisions.”
16
good faith.°** In matters both mundane and monumental,
membership in the international community implies a solemn
obligation to comply with treaties in good faith, “undertaking
to do (or not to do) unto others what they would have done
(or not done) unto them.”””
In the present context, the importance of reciprocity
cannot be overstated. Over the last 30 years, the number of
Americans living overseas has increased dramatically. The
State Department now estimates that “[a]pproximately 3.2
million Americans reside abroad, and Americans make about
60 million trips outside the United States each year.”*” The
State Department also reports that over 2,500 Americans are
arrested abroad annually.*' And this total does not include
the number of citizens detained outside the formal criminal
justice process. All told, roughly 6,000 Americans are
arrested or detained abroad every year.’ The largest number
of these - 400 - are detained in Mexico.””
_
** See, e.g., Restatement (Third) of Foreign Relations Law of the United
States §321 cmt. a (1987) (pacta sunt servanda “lies at the core of the
law of international agreements and is perhaps the most important
principle of international law.”)
** Louis Henkin, How Nations Behave 30 (2d ed. 1979).
© Bureau of Resource Management, U.S. Department of State, FY 2003
Performance and Accountability Report (2003), available at
http://www.state. gov/m/rm/rls/perfrp/2003/html/29037 htm.
*! Office of Overseas Citizens Services, Bureau of Consular Affairs, U.S.
Department of State, Department of State Publication 10252, Overseas
Citizens Services, (2002), available at www.internationalbenefits.com/
travel-uups/overseas-citizens-services.htm.
32 Kevin Herbert, The Terrorist Threat to the American Presence
17
These statistics are both descriptively and
normative!y instructive: they demonstrate that at one time or
another many U.S. citizens will find themselves overseas in
need of legal help, and they suggest that a failure to provide
foreign nationals in the United States with vigorous and
robust enforcement of the Vienna Convention could have
grave consequences for U.S. citizens abroad. This risk to
U.S. citizens has not gone unnoticed.
The State Department Foreign Affairs Manual
instructs American consuls abroad to secure “immediate
[consular] notification, no matter what the language of
applicable treaties legally requires."** Apart from ensuring
the timely provision of legal information, prompt notification
and access “is necessary to forestall physical abuse of the
prisoner. . . or to ascertain when such abuse has occurred.”*°
American consuls are required to determine if there has been
Abroad: A Report of a Consultation of The Critical Incident Analysis
Group and The Institute for Global Policy Research, Part Il. 2. Threat to
Citizens Overseas, University of Virginia, April 12-13, 1999, available
at
www.healthsystem. virginia.edu/internev/ciag/reports/report_terr_citizens.
cfm (Kevin Herbert is from the Office of Overseas Citizens Services,
U.S. Department of State).
* Press Statement by James P. Rubin, Spokesman, U.S. Department of
State (Apr. 15, 1998), available at www.hri.org/news/usa/std/1998/98-
04-15.std.html.
* U.S. Department of State Foreign Affairs Manual (1984), 7 FAM
411.3, Relations with Local Authorities.
35 Id..7 FAM 412, Access.
18
“any physical abuse or violation of rights”*° and to look for
signs of ill-treatment, bearing in mind that “many forms of
physical abuse, including systematic torture, are calculated to
leave no physical evidence.”*’ Consular officers also should
arrange for detainees to be “examined by a private medical
doctor to determine the extent and probable eause of any
injury”*® when appropriate and observe “the physical
conditions under which the prisoner is being held.”*°
Finally, the consulate is required by law “to assist U.S.
citizens abroad who, as a result of their incarceration, cannot
secure the minimal medical treatment or dietary regimen
necessary to sustain an acceptable standard of life.”*°
The State Department has repeatedly stressed to
domestic_ officials the vital importance of reciprocal
enforcement of the Convention. As Governor of Texas,
George W. Bush received a letter from Secretary of State
Madeleine Albright that noted:
As Secretary of State, ensuring the protection of
American citizens abroad - including over 300
imprisoned Texans last year — is one of my most
important responsibilities. Our ability to provide
*© Id.. 7 FAM 414.1, Abuse of Prisoners.
* Id..7 FAM 414.1-1, Examination by an Officer.
** Id.,7 FAM 414.1-2, Examination by Independent Physician in Cases
of Abuse.
°° Id.,7 FAM 414.2, Conditions of Detention.
*° Id..7 FAM 451, General Policy (Emergency Medical and Dietary
Assistance).
19
such assistance is heavily dependent, however, on the
extent to which foreign governments honor their
consular notification obligations to us. At the same
time, we must be prepared to accord other countries
the same scrupulous observance of consular
notification requirements that we expect them to
accord the United States and its citizens abroad.*!
On another occasion, Secretary Albright noted that
the State Department stood ready to provide a range of
assistance to Americans detained abroad, including
“attempting to ensure that they understand the foreign
country’s legal system and their legal options, by helping
them obtain qualified legal representation, by
communicating with their families if they wish, and by
taking other steps to improve the prisoner’s situation and in
some cases, to influence the outcome of the proceedings.” *
She has also cautioned that non-compliance with the orders
of the International Court of Justice “could be seen as a
denial by the United States of the significance of
international law and the court’s processes in its international
relations and thereby limit our ability to insure that
Americans are protected when living or traveling abroad.””*°
*! §. Babcock, The Role of International Law in United States Death
Penalty Cases, 15 LJIL 367, 376 (2002) (quoting from Secretary
Albright’s letter to Governor Bush, dated November 27, 1998).
* Letter from Madeleine Albright, Secretary of State, to Victor
Rodriguez, Chairman of the Texas Board of Pardons and Paroles, quoted
in footnote 211 of the Memorial of Mexico, Case Concerning Avena and
Other Mexican Nationals, 1.C.J. Pleadings (2003), available at
www.icj-cij.org/icjwww/idockeV/imus/imusframe.htm.
* Linda Greenhouse, Court Weighs Execution of Foreigner, N.Y. Times,
April 14, 1998, page 14 (quoting from Secretary Albright’s letter to
20
U.S. consular officers overseas have been instructed
to insist on scrupulous observance of Article 36 mghts, in
order to carry out their “primary mission” of protecting
Americans:
If we are to be effective in protecting the rights of
U.S. citizens detained or otherwise in distress abroad,
we must first know their situation and we must be
vigilant in personally assisting them. By consistently
protesting violations of notification and access
obligations, we reinforce with the host government
the seriousness with which we take our consular
responsibilities and underscore our efforts to protect
our citizens against any abuse, mistreatment or
discrimination.
Secretary Albright’s position is neither surprising nor
unusual. It has been consistently echoed by others at the
State Department — most recently by William H. Taft, IV, the
Department’s Chief Legal Advisor. As he observed in a
letter to the Oklahoma clemency officials presiding over the
recent case of Osbaldo Torres, Article 36 of the Convention
“is not only of importance to foreign nationals in the United
States. It serves to protect all Americans who travel or live
abroad.””**°
Virginia Governor James Gilmore).
“ U.S. Department of State telegram to all U.S. diplomatic and consular
posts abroad concerning consular assistance for American nationals
abroad, supra, fn. 3.
*° S_ Lynne Walker, Okla. case pits U.S. against world court, San Diego
Union-Tribune, May 7, 2004 (quoting Mr. Taft’s letter to the Oklahoma
Pardon and Parole Board), available at
21
Other State Department officials have voiced the same
sentiment.”
Robust enforcement of the Vienna Convention is not
merely the concern of cabinet level officials. On the
contrary, the law of unintended consequences in this field
has been the subject of frequent judicial comment. In Standr
v. City of New York, for example, the Court observed:
The United States has repeatedly invoked Article 36
on behalf of American citizens detained abroad who
www .signonsandiego.com/uniontrib/20040507/news_1n7penalty.html.
* For example, State Department Spokesman James P. Rubin stated that
“{cjonsular notification is no less important to [other countries] than to
U.S. nationals outside the United States. We fully appreciate that the
United States must see to it that foreign nationals in the United States
receive the same treatment we expect for our citizens overseas. We
cannot have a double standard.” Press Statement by James P. Rubin,
Spokesman, U.S. Department of State (Nov. 4, 1998), available at
http://secretary .state.gov/www/briefings/statements/1998/ps98 | 104 hum.
State Department Spokesman R. Nicholas Burns captured perfectly the
obligation imposed by reciprocity:
A lot of American citizens who are tourists ... find themselves
in trouble, find themselves ill or in prison because they didn't
understand the legal system or they came crosswise with the
system, and the only people they can turn to for help are
American diplomats. So it’s critically important to the average
American -- and millions of Americans travel overseas every
year -- that they have Americans who can help them when they
get into trouble. It happens all the time.
Press Statement by R. Nicholas Burns, Spokesman, U.S. Department of
State (Sept. 29, 1995), available at
http://www.hri.org/docs/statedep/1995/95-09-29.std.html.
22
have not been granted the right of consular access. ...
It is critical for the judiciary to recognize VCCR
rights of foreign nationals detained in the United
States for the United States to continue its success in
invoking the Vienna Convention on behalf of U.S.
citizens detained abroad.*’
Judge Butzner, of the Fourth Circuit Court of
Appeals, expressed a similar sentiment during the Breard
litigation:
United States citizens are scattered about the world -
as missionaries, Peace Corps volunteers, doctors,
teachers and students, as travelers for business and
for pleasure. Their freedom and safety are seriously
endangered if state officials fail to honor the Vienna
Convention and other nations follow their example.
Public officials should bear in mind that international
law is founded upon mutuality and reciprocity.*®
In another case, one jurist asked, perhaps only
rhetorically:
* 153 F. Supp. 2d 417, 427 (S.D.N.Y. 2001).
* Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998)(Butzner J.,
concurring )(internal quotations omitted); see also U.S. v. Carillo, 70 F.
Supp. 2d 854, 860 (N.D. Ill. 1999)(“Treaty violations not only undermine
the ‘Law of the Land,’ but also international law, where reciprocity is
key. If American law enforcement officials disregard, or perhaps more
accurately, remain unaware of the notification provision in Article 36,
then officials of foreign signatories are likely to flout those obligations
when they detain American citizens.”).
23
Why should Mexico, or any other signatory country,
honor the Treaty if the U.S. will not enforce it? The
next time we see a 60 Minutes piece on a U.S. citizen
locked up in a Mexican jail without notice to any
U.S. government official we ought to remember these
cases.”
Relevant organizations whose members will be most
affected by a restrictive interpretation of the Convention
have also voiced their concerns. The Soutliern Baptist
International Mission Board, for example, oversees 4,200
missionaries and 15,000 volunteers in 130 countries. The
president of the organization noted his concerns in urging
former Virginia Governor George Allen to commute the
sentence of an inmate on Virginia's death row. “I am
horrified to think of the potential repercussions in Mexico
and other countries, and its potential harm to our
missionaries’ that could occur because the Commonwealth
of Virginia failed to honor the obligations of the Vienna
Convention.”*°
Finally, as recent events in India and China make
plain, the danger to U.S. citizens, though perhaps more
pronounced in these turbulent times, does not arise solely
from the random acts of rogue states. Only last month,
Avnish Bajaj, a naturalized American citizen and CEO of
* Flores v. State, 994 P.2d 782, 788 (Okla. Crim. App. 1999)(Chapel, J.,
concurring in result); see also id. (court's narrow vision of the
Convention “puts U.S. citizens traveling abroad at risk of being detained
without notice to U.S. consular officials.”).
°° Frank Green, Mission Chief Urges Allen to Commute Sentence,
Richmond Times-Dispatch, Sept. 17, 1997, at Al.
24
Baazee.com, the wholly owned Indian subsidiary of eBay,
was arrested on charges that his company unwittingly
permitted pornographic materials featuring minors on its
website.”’ Indian law enforcement officials arrested Mr.
Bajaj, who had been cooperating with authorities
investigating the source of the pornography, claiming he
violated India’s Information Technology Act of 2000, which
makes a criminal offense “publishing, transmitting, or
causing to publish any information in electronic form, which
is obscene.”** Richard Boucher, spokesperson for the U.S.
State Department, noted that “(t)his situation is one of
concern at the highest levels of the U.S. government.”
American officials provided Bajaj with consular assistance,
and at least one U.S. diplomat attended a hearing at the Delhi
High Court where Bajaj successfully appealed a lower court
decision that he remain in jail without bail.~*
Similarly, Gao Zhan, a sociologist and permanent
resident based at American University, was traveling with
her young son in China when she was arrested for
*' Paul Watson, India Roiled by Internet Sex Case, L.A. Times,
December 22, 2004, available at
http://www _boston.com/news/world/asia/articles/2004/ | 2/22/india_roiled
_by_internet_sex_case/.
= Rajesh Mahapatra, Court Grants Bail to eBay's Indian Exec, Assoc.
Press, December 21, 2904,
available at http://wmtop.com/index. php ?nid= 1 08&sid=367 373.
* Id.
“ Paul Watson, India Roiled by Internet Sex Case, L.A. Times,
December 22, 2004, supra.
25
espionage.” She and her son, an American citizen, were
held incommunicado by China's state security ministry,
without notice to the U.S. Embassy. When her husband
came to China seeking information, he too was detained and
threatened. These events prompted the House of
Representatives to pass House Resolution 160, unanimously
condemning the acts of the Chinese government.”
In sum, amici stake their argument on the mutually
binding obligations of international treaties. Responsible
officials in this country have repeatedly expressed the
concern that a failure to honor Article 36 presents grave risks
to American citizens living and traveling abroad. The
Founders expressed a like concern when they foresaw what
has eluded the lower courts in this case: membership in the
international community implies a reciprocal obligation; but
if it is an obligation, it is one thet redounds most to the
benefit of the citizens of this country.“* We urge the Court to
recognize the same obligation today.
* See US Family Detained in China, BBC News, Mar. 21, 2001,
available at hittp.//news.bbc.co.uk/2/hi/asia-pacific/1233163.stm; Ann
Scott Tyson, Where's Gao? Disappeared in China: 100 days and
counting, Christian Science Monitor, June 5, 2001, available at
http://www.csmonitorservices.com/csmonitor/archivesearch. jhtml.
© See id.
* HLR. Res. 160, 107th Cong. (2001).
** The Federalist No. 64, at 392 (Clinton Rossiter ed., 2003):
Others, though content that treaties should be made in the mode
proposed, are averse to their being the SUPREME laws of the
land. They insist, and profess to believe, that treaties like acts of
assembly, should be repealable at pleasure. This idea seems to
26
Conclusion
For the foregoing reasons, the judgment of the Court
of Appeals should be reversed.
Respectfully submitted,
Joseph Margulies
Counsel for Amici Curiae
Member, Supreme Court Bar
MacArthur Justice Center
University of Chicago
Law School
1111 East 60” Street
Chicago, [IL 60637
(773) 702-9560
jmarguli @uchicago.edu -
Dated: Chicago, Illinois
January 22, 2005
be new and peculiar to this country, but new errors, as well as
new truths, often appear. These gentlemen would do well to
reflect that a treaty is only another name for a bargain, and that
it would be impossible to find a nation who would make any
bargain with us, which should be binding on them
ABSOLUTELY, but on us only so long and so far as we may
think proper to be bound by it.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.