From: MLehmphul@ncadp.org

Dear Friends:

For your consideration and possible signature, I enclose the text of a joint letter to Madeleine Albright, addressing the State Department's inconsistent response to the cases of death-sentenced foreign nationals in the USA who were not informed of their right to consular assistance.

This letter is the latest effort to seek State Department support for the development of fair and effective remedies for these serious violations of fundamental treaty-based rights. In particular, it urges that a State Department expert be sent to testify at the upcoming clemency hearing of a German national facing imminent execution in Arizona.

In cooperation with Mark Warren, AI Canada, the letter is being circulated for signature to many prominent organizations in the areas of human rights, international law and the administration of justice.

Your organization's participation as a signatory to the joint letter would be most welcome. Unfortunately, time is very short: the clemency hearing is scheduled for next Tuesday.

If you are able to lend your support to this initiative, please inform me of your participation by any convenient means no later than this FRIDAY, February 19, by 2 PM EST.

Should you require any additional information, please let me know.

Thanks for your consideration,

Matthias Lehmphul

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IMMINENT EXECUTION OF TWO GERMAN NATIONALS IN ARIZONA MANDATES STATE DEPARTMENT INTERVENTION

Dear Secretary Albright,

We represent a broad spectrum of organizations in the fields of human rights, international law and the administration of justice. We are writing to convey our profound concern over the inconsistent response of the US Department of State to domestic violations of a vitally-important international treaty. In particular, we are urging you to send State Department officials to testify at the upcoming clemency hearings of Karl and Walter LaGrand. Both are German nationals who

were never informed of their consular rights by Arizona officials following their arrest on capital murder charges in 1982.

A primary function of all consulates is to safeguard the legal and human rights of their detained nationals, by ensuring that they receive fair, humane and equal treatment under the local law. When the United States unconditionally ratified the Vienna Convention on Consular

Relations in 1969, it undertook international obligations of the highest order. Foremost among these obligations was a guarantee that all foreign citizens detained or arrested in the United States would be promptly informed of their right to communicate with and seek assistance from their consular representatives, a right protected under Article 36 of the Convention.

We are deeply troubled by the general failure of the United States to honor that promise. Until very recently, compliance with the consular treaty by police departments nationwide has been the rare exception rather than the rule. Even in those cases where foreign nationals were subsequently sentenced to death, the US government has opposed efforts to obtain domestic or international judicial remedies for past violations of the Vienna Convention.

At present, more than seventy foreign citizens representing 26 nationalities are under sentence of death in the United States. In virtually every case, the arresting authorities breached the notification requirements of Article 36, prejudicing the right of the accused to mount an adequate defense. The State Department quite rightly views consular assistance for Americans detained abroad as indispensable. But when confronted with undeniable violations of these selfsame

rights at home, the Department insists that the only obligatory remedy is an apology to the condemned national's government.

We are mindful of recent efforts by the State Department to improve voluntary compliance with the Vienna Convention at the state and local level, and we commend you for these welcome initiatives. However, we firmly believe that future domestic compliance can never be assured if no consequences attach to past violations of the treaty. The development of fair and effective remedies for past breaches of consular rights (particularly in capital cases) is the only certain way to guarantee that the consular rights of all foreigners will be respected henceforth within the United States.

In a number of recent cases of foreigners facing execution, the US courts have cited domestic procedural barriers as grounds to deny judicial relief for infractions of the consular treaty. This attitude erodes the foundations of reciprocity and good will on which all international

agreements rest: no nation--including the United States--may invoke the provisions of its domestic laws as justification for its failure to perform a binding treaty obligation.

When the USA ratified the Optional Protocol to the Vienna Convention in 1969, it ceded compulsory jurisdiction over disputes arising from the treaty to the International Court of Justice (ICJ). Yet, when Paraguay sought an ICJ ruling on behalf of one of its nationals

facing execution in Virginia, the United States argued that the International Court had no jurisdiction over the case. A unanimous order from the ICJ requiring the US authorities to stay the execution pending adjudication of the treaty dispute went unheeded. Both the

Governor of Virginia and the US Supreme Court ignored the order and the execution was allowed to proceed. Nonetheless, the State Department continues to insist that other nations must fully respect the consular rights of American citizens.

The net effect of this contradictory policy is a lethal paradox. Foreign nationals and their governments seeking a recourse for breaches of their guaranteed treaty rights find all meaningful options foreclosed. Foreign citizens facing execution in the United States who were not

informed of their consular rights are therefore left with only one possible remedy: the uncertain and capricious relief of executive clemency.

In your recent letter to the Governor of Texas urging serious consideration for the clemency application of Canadian national Stanley Faulder, you noted:

"[w]hen it has become clear that the VCCR was violated, we have asked states to consider the treaty violation in the context of a clemency petition . . . the consular notification issues in this case are sufficiently troublesome that they may provide sufficient grounds for according discretionary clemency relief."

German nationals Karl and Walter LaGrand face execution in Arizona on February 24 and March 3 respectively, under circumstances disturbingly similar to those in the Faulder case. Although state officials and the INS were apparently aware of the LaGrands' nationality, they informed neither man of his consular rights. Had they been contacted, German consular officials were mandated to promptly advise and assist their nationals. As in the Faulder case, timely

consular assistance could well have resulted in the presentation at trial of crucial mitigating evidence concerning the defendants' early background and upbringing, evidence that was only available in their native country. As the State Department conceded in its submissions to

Texas officials, "there is precedent ...for consular officers to assist in obtaining legal counsel and sometimes even in obtaining evidence".

The treaty violation in the cases of Karl and Walter LaGrand was thus far more than a legal technicality. While both brothers emigrated from Germany at an early age and were presumably familiar with the US legal system, their formative years in their native country were marked

by profound physical and emotional neglect. The extent of these significant extenuating factors was never presented at their trials. It is entirely conceivable that such powerful mitigating evidence would have persuaded at least one juror to vote against the death penalty, mandating a life sentence. Because state officials violated the Vienna Convention, the only available avenue for obtaining this crucial testimony was closed.

The US Ninth Circuit Court of Appeals described the violation of the LaGrands' consular rights as "undisputed', but dismissed their claim because it was not first raised in the state courts. Under this rationale, the defendants are penalized for failing to object promptly to the violation of their rights, even though it was the state that neglected to inform them of those rights in the first place. The Arizona Board of Pardons is thus the only authority permitted to assess the impact of

these serious treaty violations and to provide an appropriate remedy.

In your letters to Texas officials concerning the Faulder case, you stated a willingness to have State Department officials who are experts on these matters travel to Texas to meet with the Board of Pardons. Testimony given at a subsequent court hearing examining Texas clemency procedures revealed that Board of Pardons members had little or no comprehension of this issue.

The Arizona Board of Pardons and Paroles has scheduled a clemency hearing for Karl LaGrand on 23 February, 1999. We ask that the State Department send a representative to the clemency hearing, to answer any questions that Board members may have concerning the Vienna

Convention and to ensure that they give due consideration to the significance of consular notification. The value of this information is not limited to the LaGrand cases: at least seven other foreign citizens await execution in Arizona, under similar circumstances.

We are confident of your resolve to see that local authorities carefully examine and address past cases in which consular notification did not occur. As you have correctly stated, the United States must not have a double standard when it comes to respecting consular rights. The US Department of State must continue to demonstrate and reinforce this commitment, both to protect the integrity of treaty law itself and to safeguard the fundamental rights of all foreign citizens, including Americans imprisoned abroad.

Sincerely,