CST poses a unique problem to the law enforcement community for several reasons. Because these cases involve the commercial sexual exploitation of children (more commonly referred to as child prostitution), they often have negative consequences for the victims because of the stigma attached to prostitution in general. Many are reluctant, even under the best circumstances, to report these crimes. When victims do come forward, most find it difficult to cooperate for the duration of the investigation and subsequent prosecution. Also, many lack a strong support system or suffer a variety of functional difficulties. The subsequent victimization sometimes exacerbates these problems, making these children problematic witnesses at trial. Others do not cooperate because of their reluctance to revisit the pain of their abuse. Also, for many victims, their own family members and loved ones share some of the responsibility, thereby causing them emotional difficulty that prevents their full participation in the investigation and subsequent trial. Although present in many child sexual-exploitation investigations, these obstacles are more pronounced in CST cases due to the lack of victim-related services in many developing countries.

In the past, the international component of the crime has posed the greatest difficulty. Studies have shown that 25 percent of international child sex tourists come from the United States.³ For American law enforcement agencies, the typical CST investigation involves a U.S. citizen or resident traveling abroad to engage in commercial sex with a child. Much of the evidence needed for prosecution remains in another country having different legislative tools, societal attitudes, and law enforcement responsiveness to these matters. Limited resources, lack of specialized training, and language barriers add to the challenges in these transnational investigations.

On a brighter note, recent legislative reforms in the United States have made the investigation and prosecution of CST offenders less daunting. Specifically, the Protect Act of 2003 eliminated the requirement that investigators provide evidence of the offender’s intent to engage in commercial sex with a child prior to departing from the United States, clearing the way for aggressive prosecution in cases that previously would have proven impossible to pursue in U.S. courts.⁴ For example, since 2004, 11 individuals have been convicted as a result of CST investigations in the Southern District of Florida.

INVESTIGATIVE SOLUTIONS

Faced with a growing number of complaints about CST and armed with new, aggressive legislation, the FBI’s Miami office began an initiative designed to aggressively pursue child sex tourists in the United States. To do so, agents gathered intelligence about how subjects committed CST offenses and established informal investigative response protocols. In the months that followed, the agents employed both reactive and proactive techniques to investigate CST offenders. To illustrate, the author presents examples of these investigations, along with the benefits and limitations to each approach.

Reactive Investigations

Best characterized as cases where the victimization has occurred or is imminent, reactive CST investigations generally begin with a citizen’s complaint or a victim’s statement. Typically, the offender resides in one country and the offense occurs in another, requiring a coordinated effort among the international law enforcement community to gather background information and evidence. These cases also can become extremely expensive, often stretching the limited budgets of law enforcement agencies. Many police departments in the United States and abroad do not have specialized units to investigate child exploitation and abuse, which can hinder eventual prosecution, particularly in international cases. Finally, the victims in these cases often are reluctant to report their victimization and even more hesitant to follow a long, protracted investigation and subsequent trial. All of these factors make reactive CST cases extremely challenging for law enforcement authorities and prosecutors.

Ben, a retired dentist from Florida, traveled frequently to Central America, eventually buying a house near the beach in a popular tourist town.⁵ Soon after his arrival, he sought out young girls in his new neighborhood, inviting them to his home to listen to music and swim in his pool. Joined by an American friend who came to visit, both men began sexually abusing the youngsters and paying them to remain quiet. The victims, ranging in age from 12 to 15, all belonged to impoverished families to whom a few U.S. dollars equaled an entire month’s salary. Ben and his codefendant paid one young girl extra money to serve as their recruiter and bring additional victims to the house. After Ben gave the girls alcohol and illicit drugs and photographed their abuse, one victim went to the authorities who eventually arrested him. Because of limited resources and a large backlog of cases, however, they freed Ben while he was awaiting trial. After he fled the country and became a fugitive, the authorities requested FBI assistance. The subsequent fugitive investigation followed Ben to two additional countries before he returned to the United States and was arrested. A postarrest investigation revealed that Ben planned to return to his Florida home to gather money to travel to Southeast Asia. Following his arrest in Florida, FBI agents searched Ben’s computer and found numerous images of child pornography. This case represents the first time that a U.S. citizen was extradited to that Central American country.

Like Ben, Ron, a 35-yearold U.S. citizen, traveled to several countries before deciding where to finally settle. Soon after his move to a Central American country, Ron met another local man, and the two began to invite young boys to Ron’s home. In the months that followed, Ron sexually abused several children before a tip from a local citizen led law enforcement officials to his residence. During a search of his home and office, the police found information leading to a possible codefendant in the United States. Believing that Ron was photographing young victims in his Central American home and sending the pictures to his contact in the United States for editing, duplication, and distribution, the police requested FBI assistance. Eventually, Ron’s associate in the United States was indicted for possession of child pornography and later entered a guilty plea. Evidence believed relevant to Ron’s investigation was forwarded to Central American authorities. Convicted of the commercial sexual exploitation of several young boys, Ron received the equivalent of a life sentence, in part, because the investigation revealed that he knew he was HIV positive while he was abusing the children.

Proactive Investigations

Proactive investigations incorporate sophisticated investigative techniques, such as undercover operations, to identify offenders and prevent the abuse of potential victims. The use of proactive techniques in CST cases allows law enforcement officials the opportunity to gather valuable evidence while controlling the pace of the investigation. Unfortunately, because undercover operations require the dedication of extensive law enforcement resources, countries with budgetary or legislative constraints often cannot use them.

The FBI’s Miami office, in collaboration with the Fort Lauderdale Police Department and the Southern District of Florida U.S. Attorney’s Office, employed an undercover operation to identify, investigate, and prosecute individuals traveling in foreign commerce with the intent to have sex with minors; transporting juveniles in foreign commerce for the purpose of engaging in sex; enticing youngsters to perform illegal commercial sex acts; or taking part in the trafficking of children for commercial sex acts. To accomplish these objectives, an undercover officer interacted with subjects known to be predisposed to engage in CST. Authorities then arrested those who accepted the undercover officer’s offer before they departed the United States, thereby preventing the foreign travel of child sexual offenders. Advantages of this operation included gathering valuable evidence, controlling the investigation, and, most important, preventing the abuse of children in foreign jurisdictions.

THE OFFENDERS

Examining information provided by the individuals arrested as a result of the FBI’s undercover operation in Miami can help investigators learn more about CST offenders. Although only 13 subjects supplied the data, they offered some insight into the mind-set of such individuals.

Features of Child Sex Tourists

• Highly mobile, requiring coordination among varying law enforcement agencies and governments
• Likely to continue abusing children in many different countries if not arrested and prosecuted
• Usually leave evidence in multiple jurisdictions that cross national boundaries, making CST a global problem for law enforcement

Data Review

While most of the offenders were male, one female was arrested with her husband for paying to engage in sex with two minor girls. Over one-half of the offenders were between the ages of 40 and 60 with nearly one-fourth over 60 years old. Most offenders were either divorced or separated from their spouses with the smallest percentage in the single/never married category. Because travel to another country requires a somewhat substantial monetary obligation, many potential offenders likely do not become international child sex tourists because of external controls, such as limited financial resources. All offenders were employed, some in rather lucrative jobs, except for the female, a stay-at-home mother with three children.

When asked by agents why they had chosen to travel to another country, most offenders stated that they never would attempt to pay for sex with a child in the United States out of fear of arrest. Thirty-eight percent went on to say that they thought it was legal in that particular foreign country. Almost one-third said that they did not believe anyone would report the offense. And, in another nearly one-third of the cases, the offenders believed that the behavior would not actually victimize a child. Some even stated that the person selling the child was the only one doing harm.

Ben, the offender arrested in Florida after fleeing Central America, told the arresting agent that he believed that, no matter the age of the child, if she was willing to take money in exchange for sexual acts, she should be considered a professional prostitute. He further advised that because he considered these girls professional prostitutes, he should not be prosecuted. Although it is legal for people over the age of 18 to engage in prostitution in many developing countries, that does not extend to individuals under

18. The victims in Ben’s case ranged in age from 13 to 15. In addition, whereas Ben said that he never would engage in the same conduct in the United States, evidence revealed that he, in fact, was grooming potential victims in this country even while fleeing prosecution in Central America.

Ron, the offender serving a life sentence, argued that he gave the victims money for clothing, entertainment, or bus fare as a gift, not in exchange for sex. When confronted with evidence that he paid the mother of at least one boy for continued access to her child, he advised that he did that because the mother could not afford her electric bill.

John, a teacher from New Jersey, was arrested in Miami after making arrangements with an undercover agent to pay for sex with two 12-year-old girls in a foreign country. He told agents that he did not think this was wrong. During recorded conversations, however, John informed an undercover officer that he did not plan to take the young girls out of his hotel room because of the danger of being seen with them in public.

Instead of traveling out of the United States to pay for sex with young girls, Bob, a Florida police officer, requested that children be brought from a foreign country and delivered to him in a Miami hotel room. After negotiating with an undercover agent for a cheaper price for sex with two minor girls, Bob was arrested and later convicted under the commonly called Sex Tourism Statute that criminalizes the recruitment, enticement, harboring, or transporting of a minor to engage in prostitution in the United States.⁶

Child Oriented Versus Nonchild Oriented

A common question among investigators about child sex tourists involves whether they are predominantly child-oriented or nonchild-oriented offenders. In recent years, many television news shows and documentaries have featured perpetrators who traveled to foreign countries to sexually abuse very young children for small sums of money, leaving viewers with the impression that all CST offenders have a preference for extremely young, prepubescent children.

Consular Notification
and Access
The “International
Golden Rule”
By JONATHAN L. RUDD, J.D

Police officers face increasing challenges because of the blurred lines between domestic law enforcement activities and the international community. Complying with the rights afforded foreign nationals when arrested or detained is one such area recently revisited by the U.S. Supreme Court.

This article begins with a brief overview of the rights afforded foreign nationals in the Vienna Convention on Consular Relations (Vienna Convention),¹ details the substance and purpose of consular notification and access, summarizes the meaning and impact of the Supreme Court’s most recent ruling in this area, provides practical guidance for law enforcement officers regarding the implementation of notification requirements; and concludes with an explanation of why it is important for law enforcement officers at all levels of government to know, understand, and enforce the law with regard to consular notification.

Traditionally, consular functions were performed as part of customary international law and not codified by formal treaty. In time, however, countries began to formalize their consular relations in bilateral contracts called treaties, conventions, or agreements—all of which carry the binding status of a treaty for purposes of international law.³

In 1963, over 90 countries, including the United States, convened at the United Nations Conference on Consular Relations in Vienna, Austria, to create the Vienna Convention.⁴ The Vienna Convention is a multilateral treaty that codified the international common law governing consular relationships and has been referred to as “undoubtedly the single most important event in the entire history of the consular institution.”⁵ The Vienna Convention was completed on April 24, 1963, at which time countries throughout the world began the ratification process.⁶

It was not until December 24, 1969, after being ratified by President Richard Nixon upon the advice and consent of the Senate, that the Vienna Convention became enforceable in the United States.⁷ “The Nixon Administration finally sought ratification of the Vienna Convention because it believed the agreement ‘constitutes an important contribution to the development and codification of international law and should contribute to the orderly and effective conduct of consular relations between [nations].’”⁸

Today, most countries—170 different nations—are party to the Vienna Convention.⁹ “Because of its comprehensive nature and near-universal applicability, the [Vienna Convention] now establishes the ‘baseline’ for most obligations with respect to the treatment of foreign nationals in the United States, and for treatment of U.S. citizens abroad by foreign governments.”¹⁰ In addition to the Vienna Convention, other bilateral consular treaties exist, which, in many instances, provide additional obligations for the nations participating in such bilateral agreements.¹¹

The Vienna Convention is made up of 79 articles, most of which provide rules for the operation of consulates, outline the functions of consular officers, and address the privileges and immunities afforded consular officials working in a foreign country.¹² A few of the articles specify what consular officials may do for citizens of their country who may be facing special difficulties in the foreign country.¹³ Of particular interest to the law enforcement community is Article 36 of the Vienna Convention, which outlines certain obligations law enforcement officers have to notify consular officials when they arrest or otherwise significantly detain a foreign national.¹⁴

CONSULAR NOTIFICATION AND ACCESS

Article 36 of the Vienna Convention generally requires that law enforcement officials inform arrested or detained foreign nationals, without delay, of their entitlement to have their consulate notified of the detention. Article 36 further provides that if the detainees request such notification, the consular post must be notified, without delay. Moreover, consular officials must be allowed to communicate with and have reasonable access to the detainees. ¹⁵

Sanchez-Llamas v. Oregon

Moises Sanchez-Llamas, a Mexican national, was involved in a shoot-out with police in December 1999. After being arrested, the police gave him Miranda warnings²² in both English and Spanish and then interrogated him with the assistance of a Spanish interpreter. Sanchez-Llamas made several incriminating statements and subsequently was charged with attempted murder and several other offenses. The police failed to inform Sanchez-Llamas that he was entitled to have the Mexican consulate notified of his detention.

Prior to trial, Sanchez-Llamas moved to have the statements suppressed. He argued that the statements were made involuntarily and that the police failed to comply with Article 36 of the Vienna Convention. The trial court denied the motion and Sanchez-Llamas was convicted and sentenced to 20 years in prison. He appealed, and both the Oregon Court of Appeals and the Oregon Supreme Court affirmed the conviction, concluding that Article 36 does not create rights enforceable by an individual in a judicial proceeding.²³

Bustillo v. Johnson

Mario Bustillo, a Honduran national, was implicated in a violent homicide in December 1997. He was arrested by police the following day and eventually charged with murder. Bustillo never was informed that he could ask to have the Honduran consulate notified of his detention. At trial, Bustillo was convicted of first-degree murder and sentenced to 30 years in prison. His conviction and sentence were affirmed on appeal. It was not until later in the appeals process that Bustillo first claimed a violation of his rights to consular notification under Article 36 of the Vienna Convention. The court dismissed Bustillo’s claim, concluding that he failed to raise the issue at trial or on direct appeal and was, therefore, procedurally barred from bringing the matter up too late in the appeals process—a concept known as “procedural default.”²⁴

Finally, the Court concluded that there are additional constitutional and statutory safeguards that assist in protecting the rights and interests of all persons arrested in the United States, whether or not they are citizens of this country. For example, foreign nationals enjoy the protections of the Due Process Clause, are entitled the right to an attorney, and are protected against compelled self-incrimination. Significantly, Chief Justice Roberts acknowledged that despite the Court’s ruling with regard to suppression, “a defendant can raise an Article 36 claim as part of a broader challenge to the voluntariness of his statements to police.” ³⁸

Procedural Default

In Sanchez-Llamas, the Court unequivocally held that a state may apply its procedural default rules to an Article 36 claim.³⁹ In other words, because Bustillo failed to raise the Article 36 claim on direct appeal, he was effectively barred from raising the claim in state post-conviction proceedings.

The Court noted that it had already settled this exact issue in 1998 with its holding in Breard v. Greene.⁴⁰ However, it appears that the Court granted certiorari in this case because of a larger issue that has sparked considerable controversy in recent years over U.S. court rulings on the application of procedural default rules on Article 36 claims for foreign nationals facing the death penalty. Indeed, Bustillo was asking the Court to reconsider its ruling in Breard in light of recent decisions by the International Court of Justice (ICJ), which interpreted the Vienna Convention as prohibiting the application of procedural default rules to Article 36 claims. ⁴¹

In its decisions, the ICJ noted that the rights conferred by Article 36 are governed by each nation’s domestic laws and regulations, “subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.”⁴² The ICJ ruled, in the cases before it, that the application of procedural default rules prevented the “full effect” required by the express language of Article 36 and, therefore, should not be allowed.⁴³

In declining to reconsider Breard, the Court recognized the need to give “respectful consideration” to the ICJ’s interpretation of the Vienna Convention; however, the Court explained that in the United States, it is the Supreme Court, not the ICJ, that interprets the law and establishes precedent.⁴⁴

The Court added that procedural default rules “take on greater importance in an adversary system such as ours than in the sort of magistrate-directed, inquisitorial legal system characteristic of many of the other countries that are signatories to the Vienna Convention.”⁴⁵

© Corbis

When Does Consular Notification Have to Be Given?

A distinction should be made regarding notification. There are two types of notice at play under the Vienna Convention. First, detained foreign nationals must be informed that they are entitled to have their consulate notified, if desired. Article 36 requires that detainees be informed of this fact “without delay.”⁵⁷ This notification should occur without any deliberate delay and “as soon as reasonably possible under the circumstances.”⁵⁸ As a practical matter, detainees could be advised of the right to have their consulate notified as a part of routine booking procedures.

Second, if the foreign national, in response to the initial inquiry made by the detaining officials, requests that the consulate actually be notified, the Vienna Convention requires that this notification to the consulate also take place “without delay.” Similarly, the Department of State advises that this notification should occur “as soon as reasonably possible” within the consulate’s regular work hours.⁵⁹

What Type of Notification Must Be Given?

There is no required wording with regard to notification. To assist in this regard, however, the Department of State has created sample statements for informing foreign nationals of their rights in this area.⁶⁰ One statement is for use when consular notification is at the foreign national’s option (i.e., under the Vienna Convention).⁶¹ The other statement can be used when consular notification is mandatory (i.e., under other bilateral consular treaties).⁶²

With regard to the notification given to consular officials, law enforcement officers need only provide the minimum information necessary to put the consulate on notice that one of their citizens has been detained. The reasons for the detention usually do not need to be provided with the initial notification.⁶³ The easiest and best way to provide this notification is by using the fill-in-the blank fax form created by the Department of State.⁶⁴ This form allows law enforcement officers to notify the consulate while, at the same time, creating a record of the notification. It is important that law enforcement officers keep written records regarding any actions taken in this area to show compliance with consular notification and access requirements.⁶⁵

What Are the Parameters of Consular Communication and Access?

The Vienna Convention and other bilateral treaties require that consular officers be allowed to communicate with and have access to their citizens.⁶⁶ However, consular officials are not allowed to interfere with police investigations. Moreover, the law enforcement authorities are allowed to “make reasonable regulations about the time, place and manner of consular visits. Those regulations cannot, however, be so restrictive that the purpose of consular assistance is defeated.”⁶⁷

© PhotoDisc

CONCLUSION

The nature of criminal activity today and the diversity existing in U.S. communities can easily put law enforcement officers in the international spotlight. Recognizing the sensitive legal, political, and diplomatic issues triggered when interacting with foreign nationals is critical not only in ensuring compliance with the law but also in safeguarding how U.S. citizens are treated by foreign countries.

The concept of reciprocity is something a law enforcement officer may understandably neglect to consider in the heat of an ongoing investigation. Simply put, the manner and consistency with which law enforcement officers implement consular notification requirements in the United States has a reciprocal effect on the way American citizens may be treated if detained abroad. At this time in history, when international travel is commonplace and respect between governments is particularly crucial, it is more important than ever for U.S. officers to live by what some have called the “international golden rule,” and consistently provide consular notification and access to all foreign nationals arrested or otherwise detained within the United States of America.

Endnotes

¹ Vienna Convention on Consular Relations (hereafter Vienna Convention), Apr. 24, 1963, 21 U.S.T. 77; T.I.A.S. No. 6820; 596 U.N.T.S.

261.

² U.S. Department of State, 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 (Revised January 2003), at page 42 of a 72-page booklet, (hereafter Consular Notification and Access), http://www. travel.state.gov/law/notify.html.

⁵ William J. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies, 31 Vand. J. Transnat’l 257, 264 (1998), quoting from Luke Lee, Consular Law and Practice 3-7 (2nd ed., 1991), at 27. See also, Emily Deck Harrill, Exorcising the Ghost: Finding a Right and a Remedy in Article 36 of the Vienna Convention on Consular Relations, 55 S.C. L. Rev. 569 (2004).

⁷ The multilateral Vienna Convention was completed on April 24, 1963; entered into force March 19, 1967; approved by the U.S. Senate on October 22, 1969; ratified by President Richard Nixon on November 12, 1969; and, officially became U.S. law as a treaty on December 24, 1969. Aceves, supra note 5, at 269-270.

⁸ Aceves, supra note 5, at 269; quoting from Ex. E, 91st Cong., 1st Sess., at VII (Statement of Secretary of State William Rogers) (1969).

⁹ Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2675 (U.S. 2006).

¹⁰ Consular Notification and Access, supra note 2, at 42.

¹³ Id. at 42-46. See, specifically, Articles 5, 36, and 37 of the Vienna Convention. Article 5 authorizes consular officers to assist its citizens and otherwise safeguard their interests. It further provides a “catch-all” provision allowing consular officials to perform any necessary functions not prohibited by law. Article 36 addresses consular notification and access rules, which is the topic of this article. Article 37 requires the host government to notify consular officials when their citizens experience a special need for assistance (e.g., in cases of death, vulnerability due to incompetence, and major accidents).

¹⁴ Vienna Convention, supra note 1, at 100-101. In its entirety, Article 36 states: “Article 36: Communication and Contact With Nationals of the Sending State

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a)   consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b)  if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c)consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

⁵⁷ Vienna Convention, supra note 15, Art. 36, para. 1, sub. para. (b).

⁵⁹ Id. The Department of State expects that notification to consular officials be made within 24 hours and no later than 72 hours. As mentioned earlier, some of the United States bilateral consular treaties mandate that their government’s consular officials be notified whenever a citizen of their country has been arrested or detained, irrespective of the detainee’s wishes. The Department of State has a list of these countries on their Web site and provides the same in the resource materials noted in this article, including the pocket cards. Many of the mandatory notification countries require that notification take place “immediately” but then qualify this requirement by adding words such as, “but not later than 2 calendar days after arrest.” Once law enforcement officers have determined that they have arrested a foreign national from a mandatory notification country, they should inform the detainee that their government officials will be notified of the detention. (For a further description of these bilateral agreements see Consular Notification and Access, supra note 2, at 47-49.

⁶⁰ These sample statements are included on the consular notification pocket cards, and the Department of State has had them translated into at least 17 different languages. See Consular Notification and Access, supra note 2, at 27-39.

⁶¹ Statement 1, “When Consular Notification is at the Foreign National’s Option,” reads as follows: As a non-U.S. citizen who is being arrested or detained, you are entitled to have us notify your country’s consular representatives here in the United States. A consular official from your country may be able to help you obtain legal counsel, and may contact your family and visit you in detention, among other things. If you want us to notify your country’s consular officials, you can request this notification now, or at any time in the future. After your consular officials are notified, they may call or visit you. Do you want us to notify your country’s consular officials? See Consular Notification and Access, supra note 2, at 25.

⁶² Statement 2, “When Consular Notification is Mandatory,” reads as follows: Because of your nationality, we are required to notify your country’s consular representative here in the United States that you have been arrested or detained. After your consular officials are notified, they may call or visit you. You are not required to accept their assistance, but they may be able to help you obtain legal counsel and may contact your family and visit you in detention, among other things. We will be notifying your country’s consular officials as soon as possible. See Consular Notification and Access, supra note 2, at 25.

⁶⁴ Copies of the Department of State’s “Suggested Fax Sheet for Notifying Consular Officials of Arrests or Detentions” can be found on page 9 of the Consular Notification and Access booklet, supra note 2, or at the U.S. Department of State Bureau of Consular Affairs Web site at http://www.travel.state.gov/law/consular/consular_753.html.

⁶⁵ Consular Notification and Access, supra note 2, at 14.

⁶⁶ See Vienna Convention, supra note 14, Art. 36, para. 1(a), (b), and (c).

⁶⁷ Consular Notification and Access, supra note 2 at 22-23.

⁶⁹ See S. Exec. Rep. No. 91-9, p5 (1969); see also Foster v. Neilson, 2 Pet. 253, 314, 7 L. Ed. 415 (1829) (Chief Justice Marshall explained that under the Supremacy Clause a treaty is “to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.” Referenced in the dissenting opinion in Sanchez-Llamas, supra note 20, 2695-2696 (U.S. 2006).

⁷¹ For an extensive, up-to-date review of the various statutes and regulations regarding consular notification and access see Mark Warren, Consular Notification: Statutory and Regulatory Provisions, http://www3.sympatico. ca/aiwarren/compliance.htm#State_Codes. Examples include Federal Regulations: U.S. Department of Justice—28 C.F.R. § 50.5(a); Bureau of Immigration and Customs Enforcement—8 C.F.R. § 236.1(e); Military Regulations—AR 27-52; Internal Revenue Service— Internatl. Revenue Manual 9.4.12.9; and State Regulations (To date, only 3 U.S. states have codified consular notification and access obligations): Florida—Recognition of International Treaties Act (1965), Chapter 901.26 (This is the oldest state statute in this area and actually predates U.S. ratification of the Vienna Convention. Of note, the Florida statute was amended in 2000 to state that “Failure to provide consular notification under the Vienna Convention on Consular Relations or other bilateral consular conventions shall not be a defense in any criminal proceeding against any foreign national and shall not be cause for the foreign national’s discharge from custody.” As quoted in Warren, supra this note.); California-—California Penal Code § 834c (1999) and § 5028 (2004) (Although the California statute requires compliance with the Vienna Convention, it does not expressly provide any remedies for a breach of the statute); Oregon— Oregon Revised Statutes (2003) (The Oregon statute generally states that officers must “understand the requirements” of the Vienna Convention; however, it expressly states that officers cannot be held civilly or criminally liable, and that exclusion of evidence is not a remedy, for failing to provide consular notification.)

⁷⁷ Warren, supra note 71, under Law Enforcement Accreditation Standards. See also, U.S. Department of State Bureau of Consular Affairs Web site at http://www.travel.state. gov/law/consular/consular_2244.html.

⁷⁸ Since 1998, experts from the Department of State have provided more than 400 free training classes and seminars about consular notification and access to federal, state, and local officials in 36 states and territories. They have also distributed more than 1,000,000 pieces of consular notification and access instructional materials and published several articles targeting the law enforcement community. See the Department of State Bureau of Consular Affairs Web site at http://www.travel.state.gov/law/ consular/consular_2244.html.

⁷⁹ Consular Notification and Access, supra note 2.

⁸⁰ Id. These resource materials are available for review and may be ordered online at the U.S. Department of State Bureau of Consular Affairs Web site at http://www.travel.state. gov/law/consular/consular_726.html. Resources also can be ordered directly from the Office of Policy and Public Affairs, CA/P, Room 4800, Bureau of Consular Affairs, U.S. Department of State, Washington, DC 20520; telephone: (202) 647-4415; fax: (202) 736-7559; e-mail: consnot@state.gov.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.