03. Remarks by William H. Taft, IV, Legal Adviser of the Department of State before the National Association of Attorneys General, including the issue of consular notification (March 20, 2003)

Remarks of the Honorable William Howard Taft, IV,
Legal Adviser, U.S. Department of State
before the
National Association of Attorneys General
Thursday, March 20, 2003

Thank you, and good morning to all of you. It is a pleasure to be here and I very much appreciate that kind introduction.

I understand that this is the first time in a long time -- and perhaps the first time ever -- that the Legal Adviser of the Department of State has addressed this particular gathering. I think it is fair to say that my presence here today reflects one of the fundamental changes we are seeing in the American legal landscape. That is, of course, the fact that our legal work at every level of government is being influenced by international law and activities.

Many of your offices already work closely with my office, either directly or through the U.S. Justice Department, on a variety of civil and criminal law enforcement matters that have international dimensions. By way of example, my office has the lead in negotiating extradition treaties, and the State Department generally takes the lead in working out bilateral issues relating to enforcement of those treaties. We are deeply involved in efforts to extradite persons who fled abroad and who are wanted here in United States for state crimes. I'm very much aware of the frustration many of you are feeling that some countries today will not extradite their nationals or fugitives in their countries to the United States who, if returned to the United States, would face the death penalty or even life sentences.

The death penalty is a major point of difference today between the United States and many of its closest allies, and this affects international law enforcement cooperation in a variety of ways. It also provides a point of departure for my intended topic for today, "consular notification." Some of you probably have encountered the issue of consular notification in your criminal litigation -- specifically, in efforts to suppress evidence or to obtain new criminal trials or new sentencing hearings in cases in which the consular notification obligations have not been observed. Some of you may have also seen efforts to obtain remedies under the federal civil rights law for violations of consular notification requirements by state or local officials. Others of you may not yet have run into the consular notification issue, but I assure you that it is coming your way, because it is an issue that travels with almost every foreign national that enters the United States to every state they may be found in.

This morning, I want first to talk briefly about our essential consular notification obligations in criminal cases, and then turn to the question of remedies for violations of consular notification obligations in the criminal context.

When we talk about "consular notification" we usually are referring to the range of legal obligations the United States assumed to notify a foreign consular official when a national of his country is arrested or detained in the United States, for any reason. These legal obligations arise primarily from treaties, including most significantly the Vienna Convention on Consular Relations. Under that Convention, the obligation to notify a consular officer of an arrest or detention arises only if the individual who has been arrested or detained asks that his officials be notified. If the request is made, then consular officials must be notified "without delay." In addition, however -- and here is the aspect of the obligation that has given us the most trouble -- we also have a legal obligation to advise the individual who has been arrested or detained that he has a right to have his consular officials notified of his arrest or detention. And we have to advise the foreign national of this right of his, again "without delay."

These consular notification obligations are related to another basic principle of international law, which is that consular officials have the right to communicate with their nationals and to assist them in various ways. In the case of a foreign national in detention, this includes a right to visit in prison and to do things like helping the detainee find a lawyer or providing information about the U.S. legal system.

I would like to make three brief observations about the Vienna Consular Convention before turning to the subject of remedies for violations of the obligations established by it.

First, because these treaty obligations are the law of the land, we need to comply with them. Compliance generally requires nothing more than making a phone call or putting a message on a fax machine or sending a letter. This is well worth the effort. These obligations were all entered into as part of a very aggressive effort of the United States Government to protect American citizens abroad. To get protection for Americans abroad in our treaties, it was necessary to provide reciprocal protections to foreign nationals in the United States. We obviously can't insist that other countries comply and then not comply ourselves. So it is both right and fair that we comply.

Second, we are very much aware that, in most cases, the actual job of complying with these obligations falls to state and local officials. While it is not difficult to comply with the requirement if you know about it, it is difficult to make sure that all of the relevant officials -- police officers, sheriffs, prosecutors, prison wardens, police training officers, and the like -- know of the obligations and know how to comply. After the State Department learned that foreign nationals on death row had not received consular notification, it began an intensive effort to remedy the fundamental problem, which was that our consular notification obligations had not been sufficiently well publicized. The Department now runs an on-going program to improve understanding of these obligations, and compliance with them, at all levels of government, federal, state, and local. It is an enormous task now run by our Bureau of Consular Affairs. I am accompanied today by Eloise Shouse, who is deputy director of the office that coordinates the Consular Bureau's outreach and training program. I would like to introduce her to you -- she is over there - and encourage you to be in touch with her if we are not already working actively with your state on a training program. I should also mention that our Intergovernmental Affairs Office has made available to you copies of our training materials, which include this booklet -- which we are now updating, this pocket card for law enforcement officials, and a video designed to be shown in training sessions.

And the last observation I will offer is that we are not negotiating any more treaty obligations of this nature. We think that the current legal framework is adequate and appreciate that it can be at times daunting to ensure that these obligations are understood and observed by all concerned. We are not going to add to them or make them more complicated.

Let me turn now to the question of remedies where there is a failure of notification. We are required under international law to advise a foreign national who is arrested or detained, without delay, that he has a right to have his consular officials notified of his arrest or detention. What is the remedy under international law if we fail to do that?

This is a question of immediate importance to many of you as well as to my office. We are preparing now to defend the United States in the International Court of Justice -- sometimes known as the World Court -- in a case called Avena and Other Mexican Nationals with the subtitle of Mexico v. United States of America. Mexico brought this case in January of this year, seeking remedies for alleged consular notification violations in 54 cases involving Mexican nationals who were sentenced to death in ten states -- Arizona, Arkansas, California, Florida, Illinois, Nevada, Ohio, Oklahoma, Oregon, and Texas. Those of you who are Attorneys General of these states should have received a letter from me advising you of this case, and of the fact that we will need your help in defending the United States.

This is the third case we have had in the World Court over remedies for violations of the Vienna Consular Convention's consular notification obligations in death penalty cases. Paraguay brought the first of the three cases, which involved a Paraguayan national named Angel Breard, who was sentenced to death by Virginia. Paraguay withdrew that case after Breard's execution, so the Court never decided it. The second case was brought by Germany and involved two German nationals, Karl and Walter LaGrand, who were sentenced to death and executed by Arizona. That case was not withdrawn and decided by the World Court in June of 2001.

I would like to take this opportunity to thank Arizona publicly for its help in the LaGrand case. We had invaluable help from the former Arizona Attorney General, Janet Napolitano, who was the first state official ever to appear on behalf of the United States in the World Court. We were very grateful for that, and look forward to similar support in the Avena case. We have already started working with Texas and Oklahoma on the Avena case, and will be calling upon all of the states affected for help. One of the things we will need to do initially is to make sure we have all of the factual information we will need about these cases. If I may, I would like to introduce to you Peter Mason from my office, who will be heading up our efforts to work with the states to get this information. He is over there.

Traditionally, and in the LaGrand case, the United States took the position that the remedies for violations of the Vienna Convention's consular notification obligations were diplomatic and political. When we learned of alleged violations, we followed a practice of contacting the relevant authorities and determining whether a violation in fact occurred. If we confirmed a violation, we worked to ensure that the relevant authorities understood the obligations and how to comply with them. We then extended apologies on behalf of the United States to the other government concerned, and assured it that we had taken steps to prevent a recurrence. Other states took this same approach when they failed to comply with their obligations.

This approach worked fine until foreign governments began learning that they had nationals on death row who had been through the entire criminal justice process without ever being informed that they could request that their consular officials be notified of their detention. Governments like Paraguay, Mexico, and Germany all pointed out that they had been deprived of the opportunity to provide consular assistance to their nationals at the most critical early stages of the criminal process, where they might have assisted their nationals in understanding the judicial system or in obtaining legal representation. Before withdrawing its case, Paraguay took the position in its World Court case that it was entitled to a new trial for its national, this time with the benefit of consular assistance.

Germany took a different tack in the LaGrand case, and argued that our rules of procedural default, regulating when issues may be raised in criminal cases, cannot be used to prevent a court from hearing a claim of consular notification when there was a failure to tell the defendant of his right to request consular assistance. We vigorously opposed this approach, and went to some length to make sure that the Court understood our criminal justice process, with all its safeguards, and the relationship between the federal and state governments in criminal matters. In the end, the Court ruled that, if "severe penalties" are imposed in cases involving a failure to provide consular notification as required, the United States "by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation." While the term "severe penalties" is ambiguous, it certainly includes death sentences.

We expect that in the long run consular notification issues will be raised and addressed by the courts prior to trial. This is already beginning to happen because individuals are more aware of the possibility of consular assistance; defense counsel are increasingly aware of consular notification claims; consular officers are working harder to establish contacts with arresting officials; and we are doing a better job of complying thanks to the work of our Consular Bureau and the help of state and local as well as federal officials throughout the country. As we continue to improve compliance and as cases involving older violations run their course, we should not have significant difficulty with the LaGrand decision. But we do still have some difficult cases in which a violation has already occurred and the claim was procedurally defaulted before consular officials became aware of the case.

In death penalty cases where the consular notification claims are procedurally defaulted from judicial review, we have taken the position that review and reconsideration of the conviction and sentence can occur in the clemency process - by which we mean any procedure that a state has to consider granting leniency in light of all relevant information. We have worked to provide this remedy in death penalty cases as they have been brought to our attention. We have been made aware of just two cases since LaGrand: the Valdez case in Oklahoma, and the Suarez Medina case in Texas. We worked closely with Governor Keating of Oklahoma and with the pardon board in Texas to ensure that review and reconsideration of the conviction and sentence occurred in each case. In the end, Governor Keating decided to deny clemency, but made very clear in a letter to the President of Mexico that he had in fact reviewed and reconsidered the conviction and sentence in light of the consular notification violation. He also granted a 30-day stay to permit Mr. Valdez to pursue other diplomatic and legal options. As it turned out, the Oklahoma courts then granted Mr. Valdez a new sentencing hearing for reasons clearly related to -- although not directly premised on - the consular notification issue. The Texas parole board does not issue written decisions, but the Chairman of the board provided a written description of the nature and extent of the board's review before it decided not to recommend clemency for Suarez Medina. Mr. Suarez was executed last August. We have made clear to the World Court that we consider both of these processes to have fully complied with its LaGrand decision, which did not impose an obligation of result, but rather one of process.

In the Avena case, Mexico is challenging the use of clemency review and insisting that there must be judicial review of consular notification violations. It also appears to be seeking a remedy similar to that originally requested by Paraguay - that is, restoration of the status quo ante through the provision of new trials or sentencing hearings. And, we expect that it will argue -- as it has argued unsuccessfully in our domestic courts -- for an automatic rule that statements taken from foreign defendants before they are informed of their right of consular notification should be suppressed. We will of course vigorously oppose these remedies and ask the Court not to go beyond its decision in LaGrand, leaving the means of review and reconsideration to our choice. As part of our case, it will be particularly important to show the court why Mexico's proposed remedies would lead to untenable and often absurd results. This is one reason why we will want your help in gathering the critical facts in the 54 cases Mexico has brought to the Court's attention.

We expect Mexico to file its case in chief -- a written argument accompanied by documentary exhibits and declarations -- on June 6. We in turn will file our response on October 6. We will press the Court for a hearing as soon thereafter as possible, and for a quick decision.

Some of you may be aware that on February 5 the Court issued what is called a provisional measures order, in which it directed that the United States shall not execute three specific Mexican nationals among the 54 identified by Mexico while the Avena case is pending before it on the merits. These are the three cases that Mexico identified as being closest to having actual execution dates set.

Two of the three Mexicans covered by the February 5 order are on death row in Texas, and the third is in Oklahoma. We have had a number of conversations with government lawyers in both states about these cases. There is no execution date set in any of them, and to date there has been no litigation over the domestic effect of the Court's order. We are trying to understand the course any domestic litigation would take if execution dates were set and the federal or state courts were called upon to decide whether the Court's order is binding for purposes of domestic law.

In closing, I would like to ask again for your support in helping ensure that the United States complies with its consular notification obligations, and to thank those of you who are already actively engaged in this important effort. For those of you who are from the states whose cases are now before the World Court, I would again like to thank you, in advance, for the assistance we will require from you to ensure that we put on the best possible defense for the United States. These are difficult cases, and we are in a difficult position because the United States has not done as well as it should in complying with these obligations, which we insist upon so strenuously for our own nationals. We need to keep doing better, and I am confident that with your assistance we can show the Court and the world that the United States does indeed take its international law responsibilities seriously.

Finally, let me say a few words about the legal basis for our actions in Iraq. First, it goes without saying that the President's authority to use force under U.S. law is clear. Under the Constitution he has not simply the authority but the responsibility to use force to protect our national security. Congress has confirmed in two separate resolutions in 1991 and again last fall that the President has authority to use our armed forces in the specific case of Iraq.
Under international law, the basis for use of force is equally strong. There is clear authorization from the Security Council to use force to disarm Iraq. The President referred to this authority in his speech to the American people on Monday night. The source of this authority is UNSCR 678, which was the authorization to use force for the Gulf War in January 1991. In April of that year, the Council imposed a series of conditions on Iraq, including most importantly extensive disarmament obligations, as a condition of the ceasefire declared under UNSCR 687. Iraq has "materially breached" these disarmament obligations, and force may again be used under UNSCR 678 to compel Iraqi compliance.

Historical practice is also clear that a material breach by Iraq of the conditions for the cease-fire provides a basis for use of force. This was established as early as 1992. The United States, the UK and France have all used force against Iraq on a number of occasions over the past twelve years. Just last November, in Resolution 1441, the Council unanimously decided that Iraq has been and remains in material breach of its obligation. 1441 then gave Iraq a "final opportunity" to comply, but stated specifically that violations of the obligations, including the obligation to cooperate fully, under 1441 would constitute a further material breach. Iraq has clearly committed such violations and, accordingly, the authority to use force to address Iraq's material breaches is clear.

This basis in international law for the use of force in Iraq today is clear. The Attorney General of the United Kingdom has considered the issue and reached the same conclusion we have. The President may also, of course, always use force under international law in self-defense.

These are points that I thought you would want to know about.

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