THE LEGAL ADVISER

DEPARTMENT OF STATE

WASHINGTON

> October 15, 1999

James K. Robinson

Assistant Attorney General

Criminal Division

U.S. Department of Justice

Washington, D.C. 20530-0001

Dear Mr. Robinson:

I am writing to convey the views of the Department of State with respect
to the questions posed by the U.S. Court of Appeals for the First
Circuit in its August 6, 1999, order in the *Nai Fook Li* case*.* The
case arises from the boarding of the vessel *Xing Da* by the United
States Coast Guard in international waters in October 1996, and the
subsequent prosecution of the defendants for alien smuggling and related
crimes. Three of the defendants (Mao Bing Mu, Sang Li, and Ben Lin) have
claimed that Chinese consular officials were not notified of their
detention as required by the Vienna Convention on Consular Relations
(\"VCCR\") or the US-China bilateral consular convention, and that they
are entitled to a remedy in the context of their criminal prosecution.

In fact, Chinese consular officials at the Chinese Embassy in Washington
and the Chinese Ministry of Foreign Affairs in Beijing were notified of
the detention of the *Xing Da* passengers and crew by the Department of
State even before any obligation of consular notification arose. They
were also later advised that a number of persons, including members of
the *Xing~.~Da* crew, were being held by the United States for
prosecution. Thus, as explained more fully below, the Department of
State would reject any claim that the United States violated its
obligations to China under the two treaties at issue.

> The First Circuit nevertheless has indicated that it wishes to examine
> two broad questions that would be relevant if a violation of consular
> notification obligations had occurred:
>
> 1\. Whether the VCCR and/or the US-China bilateral consular convention
> (a mandatory notification convention) creates individual rights to
> consular notification and access that are enforceable by such
> individuals in court proceedings?

2\. If so, is there a remedy such as suppression of evidence or
dismissal of the \"entitlements\" for past violations of these rights
that can be invoked by a defendant in a criminal prosecution in a
federal or state court?

To facilitate its inquiry, the court has asked a number of specific
questions directed specifically to the Department of State or otherwise
within its purview.

Our answers to the court\'s questions are attached (Attachment A). They
refer to three prior official statements of the Department on behalf of
the United States: the oral presentations made to the International
Court of Justice (ICJ) in the case of *Paraguay v. United States*, and
the written submission and oral presentations made to the InterAmerican
Court of Human Rights (IACtHR) in a case commonly referred to as
\"OC­16.\" (We have provided copies of these submissions to Mr. Gormley,
one of the defense lawyers, at his request, as well as to the Department
of Justice.) The Department expects to speak to these issues again in a
submission due to be filed with the ICJ in March, 2000*,* in the case of
*Germany v. United States*.

Our comments also refer to the Department\'s 1998 publication, 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*
(generally referred to as our consular notification \"brochure\"). The
Department is engaged in a major educational program to improve
under5tatrding of and compliance with consular notification obligations,
and is distributing this brochure widely for this purpose. The brochure
is also available to the, general public at www.state.gov and may be
obtained on request by government officials for official purposes by
calling *202-647-4415.*

As detailed in Attachment A and in our ICJ and IACtHR submissions, the
Department of State generally agrees with the position taken by the
Department of Justice on the consular notification issues in this case.
That is, we agree that a failure of consular notification is a
state-to-state treaty violation that does not, as such, give rise to a
right to an individual remedy requiring the reversal of all or part of a
criminal proceeding. Rather, the usual procedural and substantive rules
should be applied to ensure that the foreign national defendant has been
advised of his rights as a criminal defendant in the United States, has
understood the charges against him, has received competent legal
representation, and has otherwise received a fair trial.

This view should not in any way be taken to detract from the importance
of consular notification obligations or the fact that such obligations
must be honored by the United States and implemented by responsible
federal, state, and local law enforcement and other officials. It simply
reflects the fact that violations of consular notification obligations
are addressed through diplomatic and political channels (or may be
referred to the International Court of Justice, if the states concerned
are parties to the VCCR\'s optional protocol). The Department of State
routinely discusses consular notification and access issues with foreign
governments and investigates alleged violations. When the Department is
satisfied that a violation has occurred, it typically extends an apology
on

behalf of the United States and seeks to prevent future recurrences by
educating the responsible officials about the relevant requirements. To
our knowledge, this is how consular notification issues have always been
handled by the United States under all of the consular conventions to
*which* it is a party, and in situations governed by customary
international law.

The questions posed by the court only arise, however, when a failure of
notification has in fact occurred. As indicated, this is not such a
case. China has not complained of any failure of consular notification,
and the Department of State would reject any such complaint because of
the numerous communications between it and senior Chinese consular
officials in Washington and Beijing about the detention of the
passengers and crew of the *Xing Do* and the subsequent decision to
bring an alien smuggling prosecution. We provide the following
information about these communications so that the court will understand
the basis for our views:

Article 35 of the US-China bilateral consular convention provides as
follows:

\"If a national of the sending State is arrested or placed under any
form of detention *within the consular district,* the competent
authorities of the receiving States shall immediately, but no later than
within four days from the date of arrest or detention, notify the
consulate of the sending State.\"

(Emphasis added.) Article 36 of the VCCR similarly provides for
notification of consular officials when a national of their state is
detained *within the consular district,* but such notification is
required to be given only if requested by the detainee after informing
him of the right to have it given.

A foreign national is not in a consular district in the United States
unless he is within the geographic United States. Our understanding is
that the *Xing Do* passengers and crew were first in the United States
when they disembarked on Wake Island, which is within the consular
district of the Chinese Consulate General in Los Angeles. Thus, in the
ordinary case their detention should have been notified to that
Consulate General. This was not an ordinary case, however. Chinese
consular officials were informed by the Department of State as early as
October 4, 1996, that the *Xing Do* had been stopped and boarded, and
that its crew and passengers were in U.S, custody. This was well before
any consular notification obligation arose - *i. e.,* while the ship,
its crew and passengers were in international waters, and outside any
consular district. Thereafter, Chinese consular officials were kept
informed of events with respect to the ship, including the fact that the
crew and passengers were taken off the ship to Guantanamo and later to
Wake Island. Chinese consular officials were also told that a number of
persons from the ship and others had been arrested for alien smuggling
and would be prosecuted. Chinese consular officials agreed to the
repatriation of the majority of the Chinese nationals knowing that
others were being detained, and Chinese consular officials in Beijing
were specifically informed on November 12, 1996, of the names of those
who were not repatriated. The names given to Chinese consular officials
on that date included the names of the three defendants who now seek to
allege a failure of consular notification. Significantly, the timing and
manner of the presentation of their names to the Chinese Government was
carefully coordinated by the Department of State. (The relevant details
of these communications are set forth in greater detail in Attachment
B.)

In short, Chinese consular officials were given information sufficient
to put them on notice that Chinese nationals were being detained and
prosecuted, and to request additional information for the purposes of
providing consular services. Chinese consular officials in Los Angeles
(and in New York, which has jurisdiction over Boston) are under the
supervision of the Chinese Embassy in Washington, and all consular
officials in Washington, Los Angeles, and New York would take direction
from the Chinese consular officials who were involved in Beijing. Had
those officials wanted to ensure that consular services were provided to
the Chinese nationals who were detained, they were in a position to do
so.

Whether the Chinese consular officials in Washington and Beijing in fact
communicated the information they received to their subordinate
Consulate Generals in Los Angeles and New York is a different question
that we cannot address. We would reject, however, any suggestion that
the treaty was violated because those Consulate Generals were not also
advised directly by the United States. Given the importance of the *Xing
Da* interdiction, repatriation, and prosecution to US-China cooperation
against alien smuggling, it was inevitable and appropriate that the
detention of the *Xing Da* crew and passengers was discussed with senior
Chinese officials. Because in this case those officials were responsible
for Chinese consular services, the objective of the consular
notification provisions of both treaties was clearly met. Conversely,
when the Department of State learns directly that an American is
detained abroad, it alerts its foreign consulates to take appropriate
action. If the Chinese Government timely notified the Department or the
US Embassy in Beijing of the detention of an American and did not also
notify our consulate with relevant jurisdiction, we would consider it
inappropriate to allege a consular notification violation based on the
technicality that a subordinate consular office was not notified.

Consistent with this view, our consular notification brochure in some
cases lists only an Embassy telephone number for a country that may also
have^,^ consulates in the United States. (A country may have opened a
consulate subsequent to publication of the brochure; it may have failed
to provide us with consulate telephone numbers when asked; or our
records of consulate telephone numbers may have been incorrectly
maintained.) When the brochure does list consular offices, it does not
provide information about their consular districts. (There are a number
of reasons for this, including the fact that foreign embassies do not
consistently provide this information to the Department.) Thus, reliance
on our own brochure may result in consular notification being made to an
. embassy or to a consular office that does not serve the place of
detention. Moreover, in educating law enforcement officers about
consular notification requirements, we advise that notification may be
made to a country\'s embassy if the appropriate local consular office
cannot be identified.

In short, our primary concern is that timely notification be provided to
consular officials of the country concerned, with the form and manner of
notification being less important. Once that has happened, those
consular officials decide which officer, if any, should take action. (In
contrast, we advise that notification to law enforcement officials of a
foreign national\'s country is not a substitute for notification to
consular officials. E.g., our brochure, page 20.) We are satisfied that
appropriate notification was provided to Chinese consular officials in
this case.

Sincerely,

ATTACHMENT A

# DEPARTMENT OF STATE ANSWERS 

# TO THE QUESTIONS POSED BY THE FIRST CIRCUIT IN

# UNITED STATES V. NAI FOOK LI[^1]

1\. The State Department's exact position on the question whether such
treaties may be invoked by defendants in criminal cases, in light of
both the State Department documents previously cited by the parties and
any other relevant State Department documents, including in particular
U.S. Department of State, 7 Foreign Affairs Manual § 411.1 (1984).

The Department of State does not believe that the VCCR or our bilateral
consular conventions require that violations of consular notification
obligations be remedied through the criminal justice process. Nothing in
any consular convention, including the VCCR and the US-China bilateral
convention, provides for such a remedy. We are unaware of any country
party to any consular convention with the United States that remedies
failures of notification through the criminal justice process. Criminal
justice systems vary throughout the world and in our experience operate
independently of consular notification. This is consistent with the
facts that consular notification can occur in a variety of ways (*e.g*.,
by phone, letter, or diplomatic note); that it is up to the consular
officer to decide whether, when, and how to respond when notified that a
national is in detention (many consular officers will do little for
their nationals, whether for policy reasons or because of resource
constraints); and that consular officers do not act as lawyers or have a
lawyer-client or fiduciary relationship with their nationals. (For
example, a consular officer may forward an extradition request that
results in a national of his country being detained, may assist the host
country in obtaining evidence for the prosecution, and also provide
consular services to the same detainee.)

To our knowledge, the question of providing individual remedies for
failures of consular notification in the context of criminal proceedings
first received significant attention within the Department of State in
the early 1990s, when a small number of foreign governments began
raising with the Department concerns about cases in which one of their
foreign nationals on death row had not received consular notification.
Until that time, the Department had followed a policy of investigating
allegations of failures of consular notification brought to our
attention and, if they were confirmed, extending formal apologies to the
government concerned and undertaking to educate the law enforcement
officials involved about consular notification requirements. Department
officials had advised criminal defendants that a failure of consular
notification was not relevant to their conviction, as evidenced by a
September 15, 1989, letter from the Legal Adviser's Office to a prisoner
that has been made available to the Department of Justice. U.S. consular
officers abroad similarly raised concerns about failures of consular
notification through diplomatic channels or directly with the law
enforcement officials concerned.

We have since devoted considerable time to the issue, reviewing our own
policies and those of other states as well as the sources available to
us for interpreting the Vienna Convention on Consular Relations (VCCR)
and other consular conventions as they have been put in issue. The
conclusions we reached, sumarized in the first paragraph above, were set
out in our submissions to the International Court of Justice (ICJ) in
*Paraguay v. United States*[^2] and to the Inter-American Court of Human
Rights (IACtHR) in "OC-16."[^3] (The Department has not yet made a
substantive submission to the ICJ in *Germany v. United States*.[^4])
Drawing upon those submissions, and the additional consideration we have
given to these issues since then, it would be fair to summarize the
Department's current views as follows:

1\. The VCCR and the US-China bilateral consular convention are treaties
that establish state-to-state rights and obligations relevant to the
conduct of consular relations and the performance of consular functions.
They are not treaties establishing rights of individuals. The right of
an individual to communicate with his consular officials is derivative
of the sending state's right to extend consular protection to its
nationals when consular relations exist between the states concerned.
States may or may not choose to exercise all of their rights under such
conventions, and may assert or waive the privileges and immunities and
other rights granted by such conventions. States may and do seek
notification of all detentions of their nationals even when they are not
entitled to be so notified under the VCCR or any bilateral agreement,
and states may and do seek to provide notification of all detentions of
foreign nationals to the nationals' consular representatives even if
they are not required to do so.

2\. The remedies for failures of consular notification under the VCCR
are diplomatic, political, or exist between states under international
law. This is consistent with the fact that it is common for rights and
obligations to exist under international law without any mechanism for
individual enforcement, depending instead upon diplomacy and the
exertion of political pressure. It is also consistent with what we
understand to be the uniform practice of states party to the convention
and, in the case of the US-China bilateral consular convention, with the
practice of the United States and China (leaving aside, of course, the
current efforts to establish a remedy in the U.S. criminal justice
process). Many, if not most, of the countries with which the United
States raises concerns that consular notification obligations have been
violated with respect to U.S. citizens will undertake to investigate the
alleged violation and, if it is confirmed, to apologize for it and
undertake to prevent future recurrences. Conversely, the U.S. Department
of State receives complaints of failure of notification in the United
States from foreign governments and similarly undertakes to investigate
them. When we are satisfied that a violation of an obligation of
consular notification has occurred, we typically apologize to the
government that made the complaint and work with the law enforcement or
other domestic officials involved to prevent future similar violations.
We understand that this practice has been followed for decades.
Recently, when confronted with death penalty cases involving failures of
consular notification, the Department also took the additional step in
some cases of asking the state involved to consider the consular
notification violation in the context of its clemency proceedings. These
requests have varied depending upon the extent to which the Department
has been able to investigate a case, the conclusions it has drawn, and
the nature of its discussions with the foreign government involved. The
Department has considered this approach to be consistent with its view
that the basic remedies for failures of consular notification are
diplomatic and political.

3.  The incidental reference to individual rights in Article 36 of the
    VCCR ("inform the person concerned without delay of his rights") is
    not intended to imply the existence of a judicially enforceable
    individual right that can be raised by the individual as a basis for
    relief in the context of a country's criminal justice system.
    Looking at the text of the VCCR, its negotiating history, and the
    practice of states under the VCCR (*i.e*., looking at the accepted
    tools of treaty interpretation), we see no intent to change the
    criminal justice processes of the member states, much less to create
    individual rights that would require the suppression of evidence (a
    remedy that is not common to criminal justice sytems outside the
    United States). The VCCR does not specify remedies for failures of
    consular notification. It does not specify the form or manner of
    consular notification and does not specify a time in which
    notification must occur, other than to say that it must occur
    "without delay." It in no way addresses the timing of notification
    in relation to a country's criminal justice process (*e.g*., nothing
    in the VCCR requires that it be given before a statement is taken).
    Nor does it require a consular officer to respond to notification,
    or to respond in any particular time period, or to offer any
    particular service. These facts are inconsistent with the notion
    that an arresting state would have to suspend its criminal justice
    process while consular notification occurred. Thus, we do not
    believe that failures of consular notification require that criminal
    proceedings be undone or otherwise require remedies in the context
    of the criminal justice process. We expressed this view to the ICJ
    in *Paraguay v. United States*, and again in our written and oral
    submissions to the IACtHR in "OC-16." (In "OC-16," we also said that
    consular notification is not an individual human right. It does not
    inhere in the individual, and there is no obligation to provide
    consular notification in the absence of consular relations. As
    discussed in response to question 6 below, we understand that the
    IACtHR has disagreed.)

4\. A number of practical difficulties would be raised by attempting to
remedy consular notification violations in the criminal justice process.
As we advised the ICJ in *Paraguay v. United States*, a *per se* rule of
reversing all events subsequent to the violation would lead to absurd
results, and a rule requiring a finding of prejudice would be highly
problematic. The Department has serious doubts about the ability of
courts to conduct informed inquiries into whether or not an individual
criminal defendant was prejudiced by a failure of notification. This
case \-- in which no violation could be alleged by China and China
assisted the United States in a number of critical respects \--
illustrates the obvious difficulty of permitting claims of prejudice to
be raised by individuals in the absence of any indication of interest by
their government. Even where a claim was supported by the government
whose treaty rights were violated, however, an inquiry into prejudice
would require an after-the-fact attempt to predict what a consular
officer would have done if notification had been provided. Such efforts
would be highly speculative, particularly given the wide variations in
consular assistance provided by different countries and the lack of any
requirement that such assistance be provided at all. The privileges and
immunities of consular officers and the inviolability of consular
archives would also be obstacles to a full and fair exploration of this
issue. Even if a foreign government were prepared to waive such
privileges and immunities and/or inviolability, it is doubtful that
sufficient relevant information would become available. Judicial inquiry
would be especially problematic in cases in which the United States and
the foreign government would dispute whether a treaty violation occurred
at all. It could also result in courts embarrassing foreign governments
by concluding that they would have provided no meaningful consular
assistance; in courts requiring the involvement of Executive Branch
officials to assess claims; or in courts making findings inconsistent
with aspects of consular law and practice that are not readily
accessible to the general public.

5\. Our position is consistent with the Department's instructions to
U.S. consular officers in the Foreign Affairs Manual (FAM). The FAM
constitutes the Department's instructions to its employees, including
its consular officers abroad. 7 FAM 410, dealing with arrests, sets a
very high standard of assistance for U.S. citizens. The FAM encourages
U.S. consular officials to be as aggressive as possible in ensuring that
they receive timely notification and to raise concerns about failures of
consular notification with their host-country governments directly.
Nowhere does the FAM suggest that, if consular notification is not given
or is given late, the failure should be addressed through the host
country's criminal justice system. U.S. consular officers do not seek
judicial remedies for failures of consular notification, and we are
unaware of any instance in which the United States has asked a foreign
court to undo a criminal proceeding based on a failure of consular
notification.

U.S. consular officer do, however, continually seek improved host
country compliance, and in fact frequently request to be notified of all
arrests, even in countries with which the United States does not have a
bilateral agreement requiring such notification. Thus the FAM advises
that "consular officers are expected to maintain relationships with
local authorities and other sources which will secure their cooperation
in providing immediate notification, no matter what the language of
applicable treaties legally requires." This contemplates that U.S.
consular officers will make their own efforts to ensure that host
government officials are aware of their consular notification
obligations and of the U.S. interest in hearing of all cases of
detention. In our conversations with foreign consular officials in the
United States, we encourage them similarly to make contacts with local
law enforcement officials in the communities they serve. If a country's
consular officers do not make such efforts and do not advise the
Department of State of failures of consular notification, this may show
that their country attaches relatively low priority to the provision of
consular services or is satisfied with the level of compliance it is
experiencing.

6\. That the United States did not expect criminal convictions to be
undone if the defendant did not receive consular notification is also
reflected in U.S. practice with respect to prisoner transfer treaties.
The United States first entered such treaties with Mexico and Canada for
the purpose of permitting American citizens imprisoned in those
countries to return to the United States to serve their sentences.
(US-Mexico Treaty on the Execution of Penal Sentences, 28 UST 7399,
signed Nov. 25, 1976; entered into force Nov. 30, 1977; US-Canada Treaty
on the Execution of Penal Sentences, 30 UST 6263, signed March 2, 1977;
entered into force July 19, 1978.) Congress was aware that a number of
American prisoners convicted in Mexico had been mistreated and/or had
not received consular notification. Yet the treaty with Mexico, like all
subsequent treaties, provided for American citizens to continue to serve
their Mexican sentences after transfer to the United States, subject to
administration of the sentence by the United States in accordance with
the treaty and U.S. implementing legislation. See Report to accompany S.
1682, Providing implementation of treaties for transfer of offenders to
or from foreign countries, H.R. Rept. 95-720, 95^th^ Congress, 1^st^
Session (Oct. 19, 1977)("in many instances where Americans were
arrested, particularly in Mexico, great delay ensued before our consular
offices were notified").

7\. The question whether an individual could enforce consular
notification obligations in some other way, such as through a mandamus
action, is not a question the Department has had to address officially.
The question has been a matter of some theoretical speculation, but as a
practical matter we do not believe it is likely to require resolution.

To bring such a suit, a foreign national detained in the United States
necessarily would already be aware that he had not been advised of his
right to communicate with a consular official, and thus would also have
the knowledge necessary to initiate communication with consular
officials himself. The obligation to inform him of his right to
communicate with a consular official is not an end in itself; it is a
means to an end \--making consular officials aware of the detention if
the detainee wishes them to know of it. It was spelled out in the VCCR
as a mechanism to deal with the possibility that the individual would
not already know of his right to communicate with his country's consular
representatives. (This potential lack of knowledge became a concern
after a proposal for "mandatory notification" of all detentions was
rejected and an alternative of informing consular officials of
detentions only at the foreign national's request was tabled.) Consular
officials frequently become aware of detentions through direct
communications from detainees or their family members who knew to seek
consular assistance but were not told of the option by the detaining
state. (Some countries with a high degree of commitment to the provision
of consular services advise their own nationals to seek consular
assistance if they are detained abroad.)

Moreover, the Department of State has recognized the need to improve
understanding of and compliance with consular notification obligations
by federal, state, and local officials and toward this end is engaged in
an intensive outreach effort. While we have not ruled out the
possibility that the Executive Branch might also use legal tools to
mandate compliance, we have found that compliance is improving as a
result of our outreach effort. We are confident that it will continue to
do so as we expand our efforts.

8\. The Department also has not had to address officially the question
of judicial remedies in cases in which a detained foreign national has
requested but been affirmatively denied the right to communicate with a
consular officer, or in which consular access rights have been denied.
We have not been confronted with such a case in the United States. When
the Department learns from a foreign embassy that one of its consular
officers is having difficulty obtaining access to a national in
detention in the United States, we resolve such issues directly with the
detaining authorities.

**2. The appropriate level of deference, if any, to be paid to
interpretive pronouncements of the Executive Branch, including the State
Department, made subsequent to enactment of treaties that are
"self-executing" in the sense that they have the force of law without
any implementing legislation.**

The views of the Executive Branch are entitled to deference regardless
of whether a treaty is "self-executing" or not, and regardless of
whether they are formulated or expressed subsequent to the "enactment"
of a treaty that is self-executing in the sense that it does not require
implementing legislation (which is the sense in which we have said that
the VCCR and other consular conventions are self-executing). Deference
is due in the first instance because treaties are entered as a result of
the Executive Branch's exercise of functions committed to the President
under the Constitution \-- the authority to enter treaties with the
advice and consent of the Senate, and the authority to conduct foreign
relations. The Executive Branch negotiates treaties on behalf of the
United States and hence is uniquely qualified to interpret them.

If there are degrees of deference, the interpretation of consular
conventions requires more than the usual deference to the Executive
Branch's interpretation. In interpreting treaties, one relevant
consideration is the subsequent practice of the states that are party to
them. It is the Executive Branch \-- through the Department of State \--
that has defined and continues to define the practice of the United
States under its consular conventions. Our consular conventions, along
with the Vienna Convention on Diplomatic Relations (VCDR) and, less
frequently, customary international law, establish the fundamental
public international law framework in which the Department conducts
consular and diplomatic relations on behalf of the United States.
Consular notification and access are part of the day-to-day work of the
Department of State and its nearly 1000 consular officers assigned
overseas. While Article 36 of the VCCR and similar provisions in
bilateral consular conventions have always been the subject of regular
discussion between the United States Government through the Department
of State and governments of virtually every country in which American
citizens are present or whose nationals are present in the United
States. We have provided the Department of Justice with information
about cases in which courts have recognized the need for deference to
the Executive Branch's views regarding diplomatic and consular
relations.

**3. Any information that may be publicly available as to whether, in
proceedings against foreign nationals including American citizens,
Chinese courts recognize individual rights enforceable by such
individuals in court proceedings under either of the two treaties and/or
treat violation of either of the two treaties as warranting dismissal,
suppression or evidence or like remedies in criminal cases.**

We are unaware of any case in which a Chinese court has considered
providing remedies or relief to any foreign defendant because of a
failure by the Chinese Government to provide consular notification or
access. There is no indication that Chinese courts would treat any such
lapses as warranting remedies in the context of the criminal process.
Moreover, during the negotiation of the bilateral agreement, China
expressed great reluctance to agree to any particular time frame in
which notification would be provided. China explained that it did not
want a specific time frame because of communications difficulties in
China and the requirement under its laws that requests for consular
access go through the Ministry of Foreign Affairs -- both factors that
would make compliance difficult. Its preference was to use the VCCR
formula, "without delay." The United States objected that this standard
was too vague and subjective, and pressed for a definite time period.
The resulting compromise was a four-day notification period, which is
the longest period provided for in any US bilateral consular convention
that establishes a specific time frame. It is doubtful that China would
have agreed even to this compromise had there been any thought that a
failure of notification would have to be remedied in the criminal
justice process.

That consular notification and assistance are not integral to the
criminal justice process under the bilateral convention is supported by
the fact that China follows extremely restrictive consular visitation
practices. Consistent with our own policy with respect to consular
officers in the United States, the US-China bilateral consular
convention expressly provides in Article 33 that "nothing in these
Articles shall authorize a consular officer to act as an
attorney-at-law.\" While the US-China bilateral consular convention
provides for mandatory notification "immediately, but not later than
four days from the date of arrest or detention," in practice
notification to US consular officials generally is made within four days
(two days in Beijing). An initial consular visit is generally permitted
within a few days thereafter, but it can be bureaucratically cumbersome
for US consular officials to arrange subsequent visits, which generally
are permitted only once a month. Meetings are limited to 30 minutes.
Moreover, US consular representatives are never allowed to be alone with
the American citizen detainee (their consular visits are monitored by
Chinese prison authorities) and there can be no discussion of any
case-related topic prior to the official sentencing. Within these
constraints, US consular officers nevertheless seek to monitor the
health and welfare of a detained American and to ensure that he or she
has legal representation, has some understanding of the charges or the
reasons for detention, and is not being treated less favorably by virtue
of being an American.

**4. Whether criminal courts in other countries that are party to the
Vienna Convention on Consular Relations recognize such rights and/or
provide such remedies at the behest of defendants in criminal cases.**

We are unaware of any country party to the VCCR that provides remedies
for violations of consular notification through its domestic criminal
justice system. As described in our presentation to the ICJ, we
undertook a survey of state practice in this regard in connection with
considering how the United States should respond to failures of consular
notification in the context of death penalty cases. We found no
indication that other states party have remedied such failures by
granting remedies in the context of their criminal justice proceedings.
Significantly, our assertions to the ICJ that there is no precedent
among states party to the VCCR for such remedies remain unrebutted even
by those governments that have supported the creation of such remedies
by the courts of the United States. For example, Paraguay failed to
identify a single example in its April 1998 oral presentations to the
ICJ or in its October 1998 memorial to the ICJ in *Paraguay v. United
States*, and Germany has failed to identify a single example in its
September 16, 1999, memorial in the similar case of *Germany v. United
States*. None of the governments that participated in OC-16 before the
IACtHR identified such an example, notwithstanding their advocacy of a
special remedy for violations for failures of consular notification in
death penalty cases. (The Department took the view that there was no
basis for a remedy limited to death penalty cases and noted that, since
the states advocating it do not impose the death penalty, such a rule
would have a unique impact on the United States.)

Conversely, we are aware of two jurisdictions, Italy and Australia, in
which courts have rejected requests by individuals for a remedy in the
context of a criminal proceeding of a violation of Article 36 of the
VCCR. These are the *Yater* case, decided in Italy in 1973, and the
*Abbrederis* case, decided in Australia in 1981. Copies of reports of
both decisions have been provided to the Department of Justice.

5\. Any publicly available information that may cast light on
representations made to, or the understanding of, the Congresses that
respectively ratified the two treaties in question with respect to the
issue of individual rights and/or private enforcement by defendants in
criminal cases.

We understand that this material will be addressed by the Department of
Justice in its brief, drawing upon the ratification record. That record
shows that Congress was advised that the VCCR would require no
significant change in US practice. Consistent with that representation,
John R. Stevenson, then the Department of State's Legal Adviser, wrote
to the state governors in April 1970 stating that "We do not believe
that the Vienna Convention will require significant departures from
existing practice within the several states of the United States." We
believe that such a statement would not have been made if the Department
of State had contemplated that the VCCR might require that failures of
consular notification be remedied in the criminal process through
prejudice hearings, and possibly the suppression of evidence or the
undoing of other aspects of the criminal process.

This record must be viewed in light of the fact that international law
in the 1960s was generally understood to govern the relations between
and obligations of states, and not the rights of individuals vis-à-vis
states. It should also be viewed in light of the Congress's subsequent
actions, in the 1970s, with respect to prisoner transfer treaties
(discussed above).

**6. Relevant authorities that became available after briefing in this
case including *United States v. Ademaj . . . ; United States v.
Lombera-Camorlinga, . . .. ; United States v. Salameh, . . . . ; United
States v. Superville, . . . ; United States v. Chaparro-Alcantara .* . .
; and any other new cases of pending petitions for certiorari.**

The Department is unaware of any new dispositive international legal
authorities that have become available. The bilateral consular treaties
to which the United States is a party do not vest dispute resolution
authority in any international body. The ICJ is vested with authority
with respect to the VCCR by states party to the VCCR's Optional
Protocol, but it has not spoken to the merits of these issues. (As
noted, Paraguay withdrew its ICJ case and Germany's case is still being
briefed.)

The IACtHR has just issued a decision in OC-16, but no official English
translation is available and the Department has not had an opportunity
to study it. In any event, the IACtHR is not charged with resolving
disputes under or interpreting the VCCR, and its decision is in no way
binding on the United States.

We defer to the Department of Justice with respect to domestic cases. We
would note, however, that the Department of State supported seeking
rehearing in the 9^th^ Circuit case, *Lombera-Camorlinga*, and worked
closely with the Department of Justice on the petition for rehearing
that was recently granted, to ensure that it was consistent with our
views.

ATTACHMENT B

Chronology Of Relevant U.S. Communications With Chinese Consular
Officials Concerning Chinese Nationals On the *Xing Da* And/Or
Prosecuted In

*United States V. Nai Fook Li*[^5]

+--------------+-------------------------------------------------------+
| **DATE**     | # EVENT/COMMUNICATION[^6]                             |
+--------------+-------------------------------------------------------+
| October 2    | *Xing Da* intercepted in international waters         |
+--------------+-------------------------------------------------------+
| October 4    | US Department of State ("DOS")told the PRC Embassy in |
|              | Washington, D.C., of the interdiction                 |
+--------------+-------------------------------------------------------+
| October 4    | US Embassy Beijing was instructed to contact PRC      |
|              | officials, ask them to confirm whether the *Xing Da*  |
|              | was a PRC registered vessel as claimed by the master  |
|              | and, if so, to provide flag-state consent to the US   |
|              | Coast Guard ("USCG") remaining on board and to        |
|              | detaining the vessel, its passengers, and crew.       |
|              | \[STATE 207066\]                                      |
+--------------+-------------------------------------------------------+
| October 4    | US Embassy Beijing advised DOS officially that it had |
|              | contacted Chinese Ministry of Foreign Affairs to      |
|              | request an urgent meeting with the Deputy Director of |
|              | the Consular Department Wei Ruixing. The Chinese had  |
|              | declined to meet that day, but had scheduled a        |
|              | meeting for October 7. The Embassy had also spoken    |
|              | with the Chief of the Consular Department's Second    |
|              | Division over the phone and briefed him on the        |
|              | situation. The Chief "expressed concern for the       |
|              | ship's condition, and asked if the passengers and     |
|              | crew were confirmed to be Chinese and, if so, if they |
|              | were from the mainland or Taiwan." \[BEIJING 37436\]  |
+--------------+-------------------------------------------------------+
| October 5    | DOS received verbal authorization from the PRC Consul |
|              | General at the PRC Embassy in Washington for the USCG |
|              | to remain on board the vessel and to take actions as  |
|              | necessary to ensure the safety of the vessel and      |
|              | people on board. The PRC had not confirmed the vessel |
|              | was PRC registered, but acted on a presumption of PRC |
|              | registry. \[STATE 209419\]                            |
+--------------+-------------------------------------------------------+
| October 7    | US Embassy Beijing Consul General met with Chinese    |
|              | MFA Consular Department Deputy Director Wei and other |
|              | Chinese consular officials about the Xing Da. Wei     |
|              | said he was "glad" that the PRC Embassy in Washington |
|              | had provided tacit approval for USCG to remain on     |
|              | board; thanked the US Consul General for the          |
|              | humanitarian assistance being provided to the         |
|              | passengers and crew; and underscored PRC's            |
|              | willingness to work with the USG to combat illegal    |
|              | immigration. \[BEIJING 37490\]                        |
+--------------+-------------------------------------------------------+
| October 8    | DOS advised US Embassy Beijing that it should thank   |
|              | the PRC Government for its help; advise it that the   |
|              | vessel was being taken to Bermuda and would arrive on |
|              | October 8; and if the vessel is confirmed as PRC      |
|              | registered request either permission for US to        |
|              | dispose of it after the people are removed or assume  |
|              | responsibility for doing so. \[STATE 209419\]         |
+--------------+-------------------------------------------------------+
| October 9    | Passengers and crew offloaded in Bermuda and flown    |
|              | immediately to Guantanamo.                            |
+--------------+-------------------------------------------------------+
| October 10   | US Embassy Beijing advised DOS of further discussions |
|              | with the PRC MFA. Embassy had advised MRA Consular    |
|              | Department Deputy Director Wei by letter that the     |
|              | vessel's crew and passengers would be transferred to  |
|              | Guantanamo and that USCG would need to act on the     |
|              | basis that the vessel was stateless if the PRC could  |
|              | not confirm registry by a specified time. The Embassy |
|              | advised DOS that it had not yet raised with the MFA   |
|              | the possibility that any of the passengers or crew    |
|              | would be asked to remain in the US. Embassy requested |
|              | clarification of information to be provided to the    |
|              | PRC about the numbers of persons to be repatriated.   |
|              | \[Beijing 37959\]                                     |
+--------------+-------------------------------------------------------+
| October 10   | US Embassy gave Chinese Foreign Ministry a letter     |
|              | from the US Consul General to the MFA Consular        |
|              | Department Deputy Head explaining, inter alia, the    |
|              | transfer of the Xing Da crew and passengers to        |
|              | Guantanamo. At this point, the possibility of some of |
|              | the passengers and crew being kept to provide legal   |
|              | testimony had not been raised. \[BEIJING 37959\]      |
+--------------+-------------------------------------------------------+
| October 16   | DOS advised US Embassy Beijing that "it may now also  |
|              | be necessary to take law enforcement action against   |
|              | some of the vessel's crew." Embassy was instructed to |
|              | thank PRC vessels for their help and to tell PRC      |
|              | officials that the USG considers the vessel stateless |
|              | and is arranging disposition of the vessel with the   |
|              | Government of Bermuda. DOS also told Embassy that 109 |
|              | passenger manifest forms would be faxed to it but     |
|              | that Embassy should not present the manifest to the   |
|              | PRC until further instructed, in case adjustments     |
|              | were necessary. \[STATE 215976\]                      |
+--------------+-------------------------------------------------------+
| October 19   | Xing Da passengers and crew depart Guantanamo         |
+--------------+-------------------------------------------------------+
| October 20   | Xing Da passengers and crew arrive on Wake Island and |
|              | for the first time are in U.S. territory and within a |
|              | Chinese consular district.                            |
+--------------+-------------------------------------------------------+
| October 26   | DOS advised US Embassy Beijing that the 109 Xing Da   |
|              | passengers and crew included 16 persons whose names   |
|              | should be removed from the manifest of 109. The names |
|              | to be removed from the list of 109 included the       |
|              | following four defendants in *United States v.* *Nai  |
|              | Fook Li*: Mu, Mao Bing; Li, Sang; Chen, aka Zhieng,   |
|              | aka Chen, Chun; Lin, Ben. When DOS gives instructions |
|              | to go ahead, the Embassy should present the remaining |
|              | manifest of 93 persons (109 -- 16) to PRC officials   |
|              | with a request to repatriate them promptly. When      |
|              | making the request, Embassy should also (1) thank the |
|              | PRC for its cooperation; (2) advise PRC officials     |
|              | that the migrants and smugglers had been removed to   |
|              | Wake Island; (3) explain that the case was complex    |
|              | and involved a US-registered pick-up vessel, and that |
|              | two smugglers on the pick-up vessel and another       |
|              | accomplice had been arrested for alien smuggling and  |
|              | were being prosecuted; (4) explain that, in addition, |
|              | four smugglers had been identified from the Xing Da;  |
|              | (5) explain that some of the Xing Da migrants were    |
|              | needed as witnesses.\[STATE 223646\]                  |
+--------------+-------------------------------------------------------+
| October 30   | DOS instructed embassy to present manifest of 93      |
|              | persons to be repatriated. \[STATE 225814\]           |
+--------------+-------------------------------------------------------+
| November 1   | Names of the 93 provided to MFA Chief of              |
|              | European/American and Oceanic Consular Affairs        |
|              | \[BEIJING 40764**\]**                                 |
+--------------+-------------------------------------------------------+
| November 8   | US Embassy reported that PRC MFA consular department  |
|              | had not yet agreed to the repatriation of the 93 and  |
|              | had requested the vessel's full manifest. \[BEIJING   |
|              | 42017\]                                               |
+--------------+-------------------------------------------------------+
| November 8   | DOS authorized embassy to give PRC officials the 16   |
|              | remaining names and explain that four potential       |
|              | co-defendants and 12 witnesses would not be returned  |
|              | due to their involvement in the criminal smuggling    |
|              | case. \[STATE 233335\]                                |
+--------------+-------------------------------------------------------+
| November 12  | US Embassy Beijing reported that on November 12       |
|              | Embassy consular officials met with Ye Minglang,      |
|              | Counsellor of the MFA's Consular Department, provided |
|              | him with the complete manifest, and pressed for PRC   |
|              | consent to repatriation of the 93. Ye noted the MFA's |
|              | policy of requiring that all of a vessel's migrants   |
|              | be repatriated together, asked for additional         |
|              | information on USG plans to prosecute crew members,   |
|              | and set out PRC conditions for repatriation. US       |
|              | Consul General gave Ye a list of the remaining 16     |
|              | migrants and crew members, and gave general           |
|              | information about DOJ plans to prosecute the          |
|              | snakeheads. \[BEIJING 42492\]                         |
+--------------+-------------------------------------------------------+
| November 13  | US Embassy Beijing reported that on November 13 the   |
|              | PRC gave permission for the repatriation flight to be |
|              | on November 18.                                       |
+--------------+-------------------------------------------------------+
| November 13  | Defendants and witnesses leave Wake                   |
+--------------+-------------------------------------------------------+
| November 14  | Defendant and witnesses arrive in Hawaii              |
+--------------+-------------------------------------------------------+
| November 14  | US Embassy Beijing advised that November 18 would not |
|              | work due to the unavailability of a charter aircraft, |
|              | but that November 20 appeared workable. In addition,  |
|              | the Embassy had given the PRC the name of an          |
|              | additional migrant to be repatriated (one of the 16). |
+--------------+-------------------------------------------------------+
| November 16  | Defendants and witnesses arrive in Boston             |
+--------------+-------------------------------------------------------+
| November 20  | Others repatriated to China                           |
+--------------+-------------------------------------------------------+
| December 5   | Embassy discussed with MFA consular officials         |
| and 9        | vehicles for obtaining assistance in getting birth    |
|              | certificates of defendants claiming to be juveniles.  |
|              | Consular officials were attempting to be helpful      |
|              | although it was not clear the documents could be      |
|              | obtained. \[BEIJING 45875; 46074\]                    |
+--------------+-------------------------------------------------------+

[^1]: *United States v. Nai Fook Li*, et al, U.S. Court of Appeals,
    First Circuit, Nos. 97-2034, 2413, 1229, 1230, 1303, 1447, 1448,
    Order of August 6, 1999

[^2]: *Case Concerning the Vienna Convention on Consular Relations
    (Paraguay v.United States of America)*. The United States and
    Paraguay are among the minority of states party to the VCCR's
    Optional Protocol, which gives the ICJ jurisdiction over disputes
    arising under the VCCR. (The VCCR itself has no dispute resolution
    mechanism.) In April 1998, Paraguay sued the United States in the
    ICJ seeking to stop the execution by Virginia of a Paraguayan
    national, Angel Breard, because he had not received consular
    notification as required by Article 36 of the VCCR, and to obtain
    other remedies for the admitted treaty violation. Oral presentations
    made by Paraguay and the United States to the ICJ on April 7, 1998,
    in connection with Paraguay's request that the United States be
    ordered to stay Mr. Breard's execution pending resolution of the
    case by the ICJ on the merits, were transcribed verbatim. The ICJ
    issued a provisional measures order to the effect that Mr. Breard
    should not be executed while the case was pending, but Governor
    Gilmore decided not to honor that request. Subsequently, on October
    9, 1998, Paraguay filed its opening memorial in the case. Because
    Paraguay withdrew the case in November 1998, the United States did
    not file a response and there was no final decision from the ICJ on
    the merits. The transcript of the United States presentation of
    April 7, 1998, is thus the only official submission by the United
    States to the ICJ on the consular notification issues in this case,
    and has been made available to the Department of Justice and defense
    counsel. It and Paraguay's submissions are also available to the
    public on the ICJ's web site.

[^3]: *Advisory Opinion, OC-16*: The Inter-American Court of Human
    Rights (IACtHR) is a court established pursuant to the American
    Convention on Human Rights ("the Convention"), a multilateral human
    rights treaty negotiated under the auspices of the Organization of
    American States ("OAS"). The IACtHR has adjudicatory jurisdiction to
    resolve specific cases relating to the application and
    interpretation of the American Convention submitted to it by states
    party to the Convention or by the Inter-American Commission on Human
    Rights (IACHR). The IACtHR also has advisory jurisdiction, pursuant
    to which member states of the OAS \-- including states that are not
    party to the Convention \-- "may consult the Court regarding the
    interpretation of \[the\] Convention or of other treaties concerning
    the protection of human rights in the American states." (American
    Convention, Article 64.) Opinions resulting from an advisory
    proceeding before the IACtHR are not binding. OC-16 was initiated by
    a request from the Government of Mexico for an advisory opinion on
    the question of remedies for failures of notification in criminal
    cases in which the death penalty has been imposed. The United States
    is not a party to the American Convention and is not bound by the
    IACtHR's adjudicatory decisions, but may participate in the IACtHR's
    advisory proceedings as a member of the OAS. The United States took
    the unusual step of participating in OC-16 in part because Mexico's
    request was clearly directed against the United States and because
    we have a strong interest in the proper application of the VCCR.
    Copies of our written and oral submissions to the IACtHR have been
    made available to the Department of Justice and defense counsel.

[^4]: *LaGrand Case (Germany v. United States of America)*: On March 2,
    1999, Germany sued the United States in the ICJ in a suit similar to
    that of *Paraguay v. United States*. The German case relates to two
    German brothers executed by the State of Arizona in February and
    March of this year who had not received consular notification. The
    case was filed on the eve of the second of the two executions and
    included a request by Germany that the ICJ direct the United States
    not to proceed with the execution. The ICJ issued a provisional
    measures order asking that the execution not proceed on March 3
    without receiving any formal oral or written presentation from the
    United States. The Governor of Arizona authorized the execution to
    proceed later that day, after all U.S. legal remedies had been
    exhausted. Germany filed its opening memorial in the case on
    September 16, 1999. The Department of State will be responding on
    behalf of the United States in March 2000. Because there was no
    formal hearing on Germany's provisional measures request, the United
    States has made no formal statements in this case to date.

[^5]: *United States v. Nai Fook Li*, et al, U.S. Court of Appeals,
    First Circuit, Nos. 97-2034, 2413, 1229, 1230, 1303, 1447, 1448.

[^6]: Where a communication is documented in a cable, the cable number
    is given.