When the United States ratified the Vienna Convention on Consular Relations in 1969, it bound itself to inform any foreign national detained by U.S. law enforcement, without delay, of his or her right to seek consular assistance. It must also notify the consulate without delay if the detained foreign national so requests. In addition, "consular officers 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."161
The obligation of notification under the Vienna Convention does not hinge on whether a person is held on immigration or criminal charges; it applies to any foreign national of a member party that "is arrested or committed to prison or to custody pending trial or is detained in any other manner."162 The U.S. obligations under the Vienna Convention are codified in an INS regulation, which states: "Every detained alien shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States."163 The regulation goes further than the Vienna Convention obligations for nationals of certain countries by requiring "immediate communication with appropriate consular or diplomatic officers whenever nationals of the following countries are detained in removal proceedings, whether or not requested by the alien and even if the alien requests that no communication be undertaken in his or her behalf."164
The U.S. government has repeatedly stated that it has upheld its obligations under the Vienna Convention. For instance, in a November 16, 2001 letter to Senator Russell Feingold and six other lawmakers, the Department of Justice wrote:
Every detained alien is also informed that he or she may communicate with consular or diplomatic officers of the country of his or her nationality in the United States. In addition, the INS affirmatively notifies the consulates of countries that are signatories to the Vienna Convention on Consular Notification within 72 hours of the arrest or detention of one of their nationals.165
Yet Human Rights Watch's research indicates that the Department of Justice has often failed to abide by its Vienna Convention obligations. Of the thirty detainees or former detainees interviewed by Human Rights Watch, twelve (40 percent) said they were not informed of their right to contact consular officials at the time of arrest or immediately after; six (20 percent) said that they were informed, and the remaining twelve (40 percent) either did not know or did not remember.
At least seven embassies have protested to the State Department about the U.S. government's failure to notify them of the detention of their nationals, according to press reports.166 In the case of Muhammed Butt, a Pakistani citizen who died in custody thirty-four days after he was arrested by the INS, the consulate stated that it did not know that he was detained until journalists called to inquire about his death.167 On the other hand, some embassies were notified and given lists of the detainees from their countries and places of detention.168
161 Article 36(1)(c) of the Vienna Convention on Consular Relations. U.S. citizens must be granted the same rights when detained in a country that is a member party to the convention, and the United States has demanded strict compliance of other countries. The U.S. government's ability to protect its citizens abroad can be enhanced or diminished by its record of compliance with the Vienna Convention's obligations at home. In a case in which Virginia officials violated a detainee's rights under the Vienna Convention, Judge Buntzer, a judge on the U.S. Court of Appeals for the Fourth Circuit, said:
United States citizens are scattered around 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.
Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). In spite of the violation, Angel Breard, a Paraguayan national, was executed on April 14, 1998.
162 Article 36(1)(b) of the Vienna Convention on Consular Relations.
163 8 CFR 236.1(e)
164 Those countries are: Albania, Antigua, Armenia, Azerbaijan, Bahamas, Barbados, Belarus, Belize, Brunei, Bulgaria, China (People's Republic of), Costa Rica, Cyprus, Czech Republic, The Dominican Republic, Fiji, Gambia, Georgia, Ghana, Grenada, Guyana, Hungary, Jamaica, Kazakhstan, Kiribati, Kuwait, Kyrgyzstan, Malaysia, Malta, Mauritius, Moldova, Mongolia, Nigeria, Philippines, Poland, Romania, Russian Federation, St. Kitts/Nevis, St. Lucia, St. Vincent/Grenadines, Seychelles, Sierra Leone, Singapore, Slovak Republic, South Korea, Tajikistan, Tanzania, Tonga, Trinidad/Tobago, Turkmenistan, Tuvalu, Ukraine, United Kingdom, USSR (all USSR successor states are covered by this agreement; they are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan), and Zambia. Ibid.
165 Daniel J. Bryant, assistant attorney general for the Office of Legislative Affairs, letter to Senator Russell D. Feingold, November 16, 2001.
166 John Donnelly and Wayne Washington, "Diplomats Fault Lack of U.S. Notice on Many Detainees," Boston Globe, November 1, 2001; and David E. Sanger, "President Defends Secret Tribunals in Terrorist Cases," New York Times, November 30, 2001.
167 Somini Sengupta, "Pakistani Man Dies in INS Custody," New York Times, October 25, 2001.
168 In response to a request from the ACLU, embassies from a number of countries provided it with lists of detainees from their countries they had received from the U.S. government. See section, Protection of the Terrorism Investigation, in this report.