TELEGRAM 2001 State 66494 April 14, 2001
R 140153Z APR 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
UNCLAS STATE 066494
E.O. 12958: N/A
TAGS: CASC, CMGT, PHUM
Subject: DEPARTMENT GUIDANCE ON RESPONDING TO AMERICAN PRISONER ALLEGATIONS OF MISTREATMENT
Ref (A) 7 FAM 400, B) STATE 010160
1. Summary: one of the most essential tasks of the Department of State and of posts abroad is to ensure fair and humane treatment for American citizens imprisoned overseas. Posts are required to report on and, with the permission of the prisoner, to protest credible allegations of mistreatment. This message, as a supplement to guidance in 7 FAM 400, defines mistreatment for these purposes, and in cases of credible allegations of mistreatment, lays out post responsibilities for action. These guidelines will be incorporated in 7 FAM as soon as possible. End summary.
2. As a general rule, in response to an allegation of mistreatment by an American citizen prisoner, posts must provide a front channel record of its protests or inquiries and the host country's response. The primary responsibility for identifying allegations of mistreatment rests with posts in the field. Ca/OCS and posts have a shared responsibility in ensuring responses to allegations of mistreatment are consistent. To this end CA/OCS has developed an arrest problems database to assist us in monitoring these cases and our responses to them.
WHAT IS MISTREATMENT?
3. In determining whether a prisoner's complaint qualifies as mistreatment, posts' first benchmark is the host country's own standards. Upon arrival at post, consular officers should familiarize themselves with host country judicial procedures, and be prepared to outline them to an arrestee. Such information would include, but is not limited to, the maximum period of pre-trial confinement, the right to legal representation, and the prisoner's right to avoid self-incrimination. Violation of the host country's own legal standards is by definition mistreatment. Post should also be sensitive to an arrestee's allegation of physical abuse by police or prison officials, which would constitute "mistreatment" within the meaning of this guidance.
4. Local legal standards, however, are not the only guidelines in determining mistreatment. In many countries, the standards of the judicial process and the prison system are low enough that they do not meet minimum international norms concerning the rights of the arrested and imprisoned. International norms concerning the rights of prisoners are outlined in a number of U.N. documents, most notably the UNHCR's "standard minimum rules for the treatment of prisoners," and the "convention against torture and other cruel inhuman or degrading treatment or punishment." These and other U.N. documents relating to prisoners' rights can be found at the UNHCR's web site, www.unhcr.ch, and are echoed in 7 FAM 415. Posts should note that some of these documents are non-binding resolutions; in such cases, it is not appropriate to speak of their being "violated." Further, while more than 100 states are party to and therefor legally bound by the convention against torture, including the u.s., a number of countries are not parties to this treaty. Posts should take these factors into account when considering how to best formulate interventions based on international norms. Post should also be careful not to rely in making demarches on treaties to which the United States is not a party. Information on which states are parties to the convention against torture can be found in the appendices of the Department's annual country reports on human rights; more current information may be obtained through the Department when necessary. Intentional infliction of severe pain or suffering, excessively lengthy pre-trial detention, unreasonable confiscations of a prisoner's personal property, inhumane prison conditions, and a prison diet insufficient to maintain a minimally acceptable standard of health would not meet international norms and, with the consent of affected American prisoners, would require a post protest.
5. In addition to noting local and international standards, post should be on the lookout for situations in which American prisoners are discriminated against because of their American citizenship. Such instances may occur in nations with poor relations with the United States, but could occur anywhere. In assessing whether there is mistreatment in these cases, the Department notes that nationals of a country often enjoy rights normally not accorded to foreigners; for example, the right to participate in that nation's political process. Such instances would not per se qualify as mistreatment; rather post's emphasis should be in identifying mistreatment in the judicial process and the conditions of the prisoner's incarceration. Ca/OCS is available for guidance in these cases.
DETERMINING THE CREDIBILITY OF THE ALLEGATION OF MISTREATMENT
6. The Department believes that protesting frivolous or clearly fictitious allegations of mistreatment does little good for the American prisoner in question, and actually harms the credibility of other Americans with serious claims of mistreatment. Therefore, per 7 FAM 414.1-1, it is imperative that as soon as learning of an American prisoner's allegation of mistreatment, a consular officer make every effort to determine the veracity of these allegations. In doing so, the consular officer may rely on his/her own visual examination of the prisoner, a doctor's examination (if available), the oral or written testimony of the prisoner, the track record of law enforcement officials in the host country and any other factors the officer deems relevant. The benefit of doubt in such determinations should normally go to the American; that is, in instances where the prisoner claims abuse, and the consular officer is unable to make a determination, he should ask the prisoner if he wishes the consular officer to protest his mistreatment, or at least to request that the host government respond to the allegations.
OBTAINING PRISONER'S PERMISSION TO LODGE A PROTEST
7. Normally, the decision to request a protest of a credible allegation of mistreatment is the prisoner's. Many prisoners with credible allegations of mistreatment will not want to make a protest, fearing potential reprisals from host country officials. In visiting with a prisoner, consular officers should resist the temptation to advise the prisoner one way or the other, but may note the local penal landscape and the experience of other American prisoners in the host country. If the prisoner decides against requesting a protest, posts should request a signed statement from the prisoner to this effect, and provide a full and timely report to the Department. In rare instances, with the best interests of the prisoner in mind, posts may want to protest without the expressed consent of the prisoner; in such cases, post should obtain prior authorization from the Department.
NATURE OF THE PROTEST
8. In all cases where a prisoner requests a protest, and the allegations are credible and meet the definition of mistreatment contained above, posts must protest. Per 7 FAM 415.2, protests may be made at various levels in the host government's hierarchy and by different methods (oral, written, formal, and informal). The level at which the protest is made and the method are left to the post's discretion. As post deems appropriate, post may also frame the protest in the form of a request for an investigation. In all cases, posts must provide CA/OCS with a record of its protests, and when received, a record of the host country's response.
9. Posts should feel free to contact their respective CA/OCS/ACS country officer if they have any questions. As always, we greatly appreciate posts' efforts.