Consular Notification on Campus
December 27 2016
Carmen began her work at the U.S. Department of State as a Pathways Intern in the Bureau of Administration in 2010, and is currently a Public Affairs Officer in the Bureau of Consular Affairs working on Consular Notification and Access Outreach. She has previously been published in State Magazine and holds a master’s degree from the George Washington University.
Every day in the United States, law enforcement officers make thousands of arrests as part of the performance of their duties. Most of the arrests are routine – the arresting officer informs the person they are being placed under arrest, makes them aware of any applicable charges they may face, and offers them the right to speak with an attorney if they choose. But let’s imagine for a moment you are witnessing the arrest of someone outside of the United States. What would you expect to see? Consider Jill, a student studying abroad in a foreign county. Before classes start, Jill decides to take in some of the country’s beautiful scenery by going on a safari ride. In her excitement, she takes out her camera and snaps some photographs. Immediately after taking the photos, she is approached by armed guards who confiscate the camera and place her in handcuffs. She pleads with them to tell her what is going on, but is unable to understand their response because it is spoken in a language she does not speak. As she is being escorted away, she realizes she is half way around the world without the comforts of home – in a foreign country where she is subject to laws and a criminal justice system with which she is unfamiliar. What should she do? Laws vary from country to country, but as a U.S. citizen if you find yourself under arrest abroad, U.S. consular officers can provide assistance if they know you are in need.
Similarly, U.S. law enforcement officers—including campus law enforcement officers—must be aware of the unique consular notification obligation that arises when arresting or detaining foreign nationals in the United States. Campus law enforcement officers might encounter international students on a regular basis as many institutions of higher education actively recruit them. In accordance with the Vienna Convention on Consular Relations (VCCR), foreign governments have a right to notification and access when a citizen of their country is arrested, detained, suffers serious injury, or death. The VCCR is an international treaty to which the United States is party. The Supremacy Clause in Article 6 of the U.S. Constitution states, “all Treaties … shall be the supreme Law of the Land,” making consular notification and access both U.S. and international law.
As a party to the VCCR, law enforcement authorities in the U.S. have an obligation to carry out consular notification and access when detaining a foreign national. What qualifies as a detention? For the purposes of consular notification, it is understood to cover any situation in which a foreign national’s ability to communicate with or visit consular officers is impeded as a result of actions by government officials limiting that foreign national’s freedom. As a best practice, when making an on-campus arrest or holding a student in detention, law enforcement should attempt to identify the citizenship of the person being detained. You can go about doing this in a number of ways including asking directly and checking for identifying documents such as a foreign passport or permanent residence card, which is commonly known as a “green card.” However, note that the provisions of the VCCR apply to anyone arrested or detained in a foreign country, regardless of whether the individual is in this country legally or without documentation.
The VCCR states that notification should take place “without delay.” The U.S. Department of State interprets this to mean within 72 hours of the detention. After authorities identify a detainee as a foreign national, they should first determine whether the country of citizenship is one of the 57 countries with which we have an agreement to provide mandatory notification (“mandatory notification countries”). If the detainee is a national of a mandatory notification country, you should inform him or her that you are required to notify the foreign consul and you should do so without delay. If the detainee’s country of citizenship is not a mandatory notification country, you should first ask the detainee if he or she wants their embassy or consulate to be notified of the arrest. Although it may seem simpler to make notification for all foreign nationals that are arrested, authorities need to ask citizens of non-mandatory countries before making the notification as there may be reasons why the arrestee might not want his or her government to know that they have been arrested or even that they are in the United States.
Law enforcement officials can utilize translations provided by the U.S. Department of State to ask the detainee in his or her language if he or she would like consular notification of the arrest. Officials should document the response by the foreign national and save a copy for their records. Record keeping is essential as the documentation may be needed as evidence in the case of a foreign government inquiry. If the detainee indicates that he or she would like the consul notified or if the foreign national is from a mandatory country, the appropriate embassy or consulate should be notified without delay, but no more than 72 hours after the arrest. Contact information for all foreign embassies and consulates in the U.S. can be located on the U.S. Department of State’s Consular Notification and Access webpage.
Sending a fax to foreign embassy or consulate is highly recommended; this method is available 24 hours a day and gives authorities a record that the notification was received. Notification can also be made via phone or email when available. When making phone notifications, authorities should be sure to record the date and time the notification was made as well as the telephone number called and the name of the representative from the foreign embassy or consulate with whom they spoke. Consuls can be a useful resource for law enforcement. Although not attorneys, consuls can assist the foreign national in seeking legal representation and offer guidance on the legal process to the foreign national. They can also contact relatives and friends of the foreign national and advise them on assisting the foreign national. Consuls can observe trials and liaise with both the defense and prosecution for the purpose of translating information for the foreign national. They can monitor the foreign national’s case and provide information to family or friends. Finally, the consul can provide the foreign national with food, medicine, reading material, and other necessities as allowed by the detainee’s facility.
The VCCR is a treaty; of course, all treaties are reciprocal. Only when we fulfill our treaty obligations, can we expect the same from other countries. The best way to ensure that U.S. citizens abroad are provided consular notification and access is for U.S. law enforcement to practice “personal diplomacy” by adhering to the consular notification and access requirements here at home. Often, consuls provide the only means for someone who is being detained to communicate with their family back home, access necessary medications or dietary needs, or obtain an understanding of their legal rights spoken in a language they can understand. Not following consular notification and access procedures can have detrimental consequences. In recent years, serious challenges have arisen in cases of lack of notification. As these cases become a more frequent occurrence, courts are making determinations on how to address them. Providing proper notification avoids grounds for convictions being overturned or evidence being suppressed.
The U.S. Department of State, Bureau of Consular Affairs is here to assist federal, state, and local law enforcement with consular notification and access by offering an array of resources and services such as assisting with developing standard operating procedures and answering questions regarding official policies. We are excited to bring our message throughout the country through our training and outreach programs. We also develop and distribute materials to educate and inform U.S. law enforcement agencies on consular notification and access. Consular notification and access plays an important role in strengthening relationships with other countries. It involves collaborative partnerships between the law enforcement community, foreign governments, and the federal government. We seek to foster a better understanding of Consular Notification and Access in the law enforcement community, and act as a bridge between foreign consuls and law enforcement.
You may contact the CNA Team by email or by telephone at 202-485-7703 during regular business hours. Outside of business hours, you may call the State Department Operations Center at 202-647-1516 for assistance. The Op Center will connect you to someone who is able to provide guidance and advice. We are here to help you!