HEARING ON DIPLOMATIC IMMUNITY, H.R. 3036

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R001300080050-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 42
• Document Creation Date: December 27, 2016
• Document Release Date: November 14, 2012
• Sequence Number: 50
• Publication Date: April 1, 1988
• Content Type: MEMO

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oLE
1 April 1988
OCA 88-1023
MEMORANDUM FOR THE RECORD
SUBJECT: Hearing on Diplomatic Immunity, H.R. 3036
1. On 30 March 1988, I attended a hearing held by the
Subcommittee on International Operations, House Committee on
Foreign Affairs, regarding a bill to limit diplomatic immunity
for perpetrators of crimes (H.R. 3036). Testifying were Selwa
Roosevelt, Chief of Protocol and John Condayan of the
Department of State. Members attending were Representatives
Smith, Snowe and Gilman. Attached are copies of Roosevelt's
and Condayan's prepared statements.
2. Smith opened the hearing with his statement, noting
that sweeping changes in diplomatic immunity could lead to
problems, such as the altering of comparable laws abroad.
Roosevelt then read her statement, making corrections in some
figures. The total number of persons in the United States with
criminal immunity is 26,282; the total number of those with
acts immunity is 29,689, which adds up to 55,971. There has
been no glaring increase in the number of crimes committed over
the last decade.. With regard to debts owed by diplomats, the
problems are debts owed to American. businesses or individuals
by embassies or their personnel. Roosevelt feels strongly
about taking care of this problem and included it in a report.
3. Smith admitted it would be difficult to implement some
of the provisions of the bill, such as requiring personal
insurance. In this country, one can only cover oneself for
negligent acts through a homeowner's policy. He then asked for
an example of abuses by Americans in the host countries. Mike
McQuade, also appearing on behalf of the Department of State,
said that Americans abroad are usually law-abiding. There are
some problems with children and people who drink too much,
though. Other countries afford great respect to diplomatic
immunity, even if they are otherwise hostile.
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4. Smith asked what is the type of crime committed most
frequently. Roosevelt answered, shoplifting. Smith noted that
there is no definition of a serious crime in the bill, which
will be corrected. Roosevelt continued to say that there have
been 24 assaults committed in six years, and 53 shoplifters
caught. These cases involve defendants rather than diplomats
as a rule.
5. Smith asked if the amount of diplomatic crime or
diplomatic civil problem is out of line with that of other
countries. Roosevelt answered that it is different in every
country; she does not have statistics. Condayan said that last
year, there were 19 cases of driving under the influence,
resulting in 19 suspensions of licenses. This figure is
probably not out of line. McQuade said that to find comparable
statistics, one must look at a major capital city, such as
London, Paris or Tokyo. Roosevelt said the figures were more
or less the same in London and McQuade agreed. He said there
are the same sorts of numbers and offenses found in London.
6. Smith wanted to know whether most of the drivers in
auto accidents are covered by insurance. Condayan said yes.
Smith said that apparently the largest single civil problem is
that of bad debts. He asked if this is a significant problem.
Roosevelt said that the debts are generally paid, but there
were some patterns of irresponsibility. Smith asked if
diplomatic immunity extends to bad debts. Roosevelt said yes.
Smith then asked if immunity should extend this far. Joan
Donoghue, an attorney with the Department of State, said that
diplomats enjoy comprehensive immunity. Their staffs can be
sued, however, for bad debts. Smith asked if the State
Department looks to the foreign country for reimbursement.
Roosevelt said she goes to the ambassador when a case is
brought to her attention. These are often landlord-tenant
disputes, and sometimes the diplomat/tenant is right.
Sometimes going to the ambassador helps, but sometimes it does
not. Roosevelt wants to refuse to accept diplomats from
countries with this problem; she has tried to use this as the
ultimate threat. It is uncertain whether this "threat" will be
successful in tempering the problem.
7. Snowe asked how many persons who committed serious
crimes are still in the United States. Roosevelt replied,
none. They leave the country as soon as the crimes are
discovered. The State Department normally asks for a waiver of
immunity in court, which is usually not granted. The
perpetrator is then expelled. Snowe asked if the United States
ever grants a waiver of immunity. Roosevelt said rarely.
Donoguhe said that the United States allows diplomats to waive
immunity to testify. It depends on the country and the
circumstances of the case as to whether they would get a fair
trial.
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STAT
8. Snowe asked if the United States has ever prosecuted a
foreign diplomat. Donoghue said yes, although this is very
rare. There was a case in which a diplomat's son's immunity
ran out; he was covered as a member of his father's household
and was thought to be a full-time student, but was not. The
latter fact weighed against immunity. This was a case of
speeding and~then seeking to elude the police.
9. Snowe asked if a person must be assigned to a mission
or embassy to have diplomatic immunity. McQuade said no.
Strictly speaking, such immunity is accorded only at missions
or embassies. Practically, however, the same degree of
immunity is granted with regard to international organizations
such as the United Nations, United Nations Secretariat and
missions to the United Nations. People with immunity are
mainly found in New York and the District of Columbia.
10. Snowe asked if there was a case in which a'Saudi
prince was alleged to hold his household staff in slavery and
immunity was granted retroactively. A member of Roosevelt's
staff said yes, although a harder line is now taken in such
cases. That case was exceptional.
11. There then took place a long exchange between Snowe
and the State Department representatives regarding the
cancellation of visas and a 30-day continuance policy found in
a State Department report. Roosevelt asked to take the
question back and supply an"answer to it at a later date.
12. The hearing recessed for a vote after Gilman asked why
the State Department was objecting to a section 5(c) exclusion
if it admits the visa revocation system does fail. He did not
receive an answer to the question before the recess.
Legislation Division .
Office of Congressional Affairs
STAT
OCA/LEGI (1 April 1988)
Distribution:
Original - OCA/Leg/Subject File - Crimes (w/atts)
1 - OCA/Leg/Subject File - Legislation General (w/atts)
1 - D/OCA (w/atts)
1 - DDL./OCA (w/o atts)
!l - OCA Registry (a/atts)i
1 - 0 Signer (w/o atts)'
1 - OCA Read (w/o atts)
STAT
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STATEMENT OF SELWA ROOSEVELT
CHIEF OF PROTOCOL OF THE UNITED STATES
BEFORE THE COMMITTEE ON FOREIGN AFFAIRS
SUBCOMMITTEE
ON INTERNATIONAL OPERATIONS
HOUSE OF REPRESENTATIVES
H.R. 3036
MARCH 30, 1988
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Mr. Chairman, members of the Committee, I am Selwa
Roosevelt, Chief of Protocol. I appear here today with my
colleague, Mr. John Condayan, who is Acting Director of the
Office of Foreign Missions, pursuant to Chairman Mica's
invitation to provide the Department of State's views on
H.R. 3036, a bill "To provide redress for crimes committed by
diplomats in the United States, and for other purposes."
With us are Ms. Joan E. Donoghue of the Office of the Legal
Adviser, and Mr. William M. McQuade of the Office of
International Organization Affairs.
As Chief of Protocol, one of my primary responsibilities is
the accreditation of all diplomatic and consular officers as
well as employees of foreign governments and of public-
international organizations in the United States. Their
privileges and immunities stem from their accreditation. Also,
Protocol deals with abuses of immunity, both criminal and
civil, when they occur.
Let me begin by stating that we support, or do not oppose,
sections 1, 2, 4 and most of section 3 of the bill. We do not
see a need for section 6. However, the Department cannot
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support subsection (c) of section 3, and sections 5, 7, 8, 9
and 10. In our testimony today, we will explain the
Department's positions on each of these sections.
I wish to point out that the Department has recently
submitted to the Congress a study and report concerning the
status of individuals with diplomatic immunity in the United
States required by the Foreign Relations Authorization Act
(Fiscal Years 1988-89), Section 137.
During the last decade, the Department has been keenly
aware of the need to monitor closely the granting of immunity
and has taken steps to ensure that the degree of immunity
extended to persons is commensurate with the need for immunity
in performing duties on behalf of one's government.
In this regard, the Department participated with the
Congress in the enactment of the Diplomatic Relations Act of
1978, which made the Vienna Convention on Diplomatic Relations
the United States law governing the immunity accorded certain
official representatives of foreign governments in this
country. As a result of this legislation, the degree of
immunity accorded diplomatic mission personnel is based upon
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the position of a member of the mission and upon the nature and
sensitivity of his work and the corresponding need for the
individual and, in some cases, the members of his family to be
protected from local jurisdiction.
Where the United States Government has deemed it to be
beneficial, the President has used his authority under the
Diplomatic Relations Act to conclude treaties providing on a
reciprocal basis greater immunities for the personnel of the
sending State.
Immunity is essential to the conduct of diplomatic
relations. It protects almost 30,000 Americans and their
families posted overseas. At times this may be in conflict
with the duty to protect American citizens in the United States
from harm. We-believe it is difficult, if not impossible, to
resolve these conflicting concerns in all cases. We wish to
emphasize to Congress that protection of our employees abroad
must not be sacrificed through imposition of measures reducing
immunity in the United States which may invite reciprocal
actions abroad.
The Vienna Convention does impose a clear obligation on
those entitled to immunity to respect the laws of the receiving
State. Nonetheless our laws sometimes are violated by persons
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with immunity. The United States Government does not condone
these abuses of immunity, but we believe we should continue to
abide by our obligation under international law to accord
immunity in those rare cases where abuses of immunity occur.
Nevertheless, there are measures which are available to us,
and since. the passage of the Diplomatic Relations Act the
Department has taken steps consistent with the provisions of
the Vienna Convention to deal with offenders.
A summary of a number of these steps was set forth in
testimony which I delivered before the Senate Foreign Relations
Committee on August 5, 1987, in connection with S.1437. A copy
of'that testimony has been made available to this committee.
We believe that the bill before us provides, in general, a
useful framework for further measures.
I am prepared to discuss sections 2 through 7 of this bill,
and Mr. Condayan will discuss sections 8, 9 and 10.
At the outset, let me offer several general observations.
In many places, the bill makes amendments to the Foreign
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Missions Act of 1982 and delegates to the Director of the
Office of Foreign Missions certain responsibilities. As many
of the functions mandated by the proposed legislation fall
within the purview of offices other than the Office of Foreign
Missions, including my own, we urge Congress to grant these
functions generally to the Secretary of State so that he has
the ability to delegate these responsibilities as he deems
necessary and appropriate. In addition, where certain
functions are more closely related to the subject matter of the
1978 Diplomatic Relations Act, we suggest that they be set
forth as amendments to that law.
We also note that H.R. 3036 uses throughout the bill the
phrase "an individual with immunity from the criminal
jurisdiction of the United States under the Vienna
Convention." This term does not adequately characterize the
full range of persons that we believe Congress intended to
cover in this legislation. Not only do diplomats and certain
other types of diplomatic personnel have immunity from criminal
jurisdiction, but under bilateral and multilateral agreements,
and customary international law, certain other personnel are
also entitled to this immunity. Thus, we recommend amending
this definition to so provide.
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The Department believes that the term "serious criminal
offense" should be limited to crimes of violence as defined in
U.S. law, perhaps including those offenses involving serious
personal injury. The Department also believes that the
application of this proposal should be limited to situations
where there is evidence substantiating,the charges.`
In regard to section 6, we believe there is no need for
such a section in this legislation.
As we have noted, pursuant to the Foreign Relations
Authorization Act (FY 1988-89), Sec. 137, the Department has
already submitted to the Congress a study and report concerning
the status of individuals with diplomatic immunity in the
United States which we believe fulfills the spirit of section 6
of H.R. 3036. This exhaustive study and report represents the
concerted view of numerous Department offices and covers
certain issues set forth in the legislation, including:
-- A study of the minimum liability insurance coverage
required for members of foreign missions and their families;
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-- Collection of debts of foreign missions, mission personnel
and their family members;
-- Serious criminal incidents involving persons entitled to
immunity;
-- Education of law enforcement personnel in the area of
diplomatic immunity;
-- The extent to which the Department is able to identify
diplomats involved in crimes so as to remove them from the
United States and the extent to which existing law may be
inadequate to prevent readmission of such individuals under
other nonimmigrant and immigrant categories; and
-- Examination of the considerations in establishing a fund
for compensating the victims of crimes committed by persons
entitled to immunity from criminal prosecution, including
the feasibility of establishing an insurance fund financed
by foreign missions.
Secondly, the privileges and immunities accorded foreign
diplomats and members of their families are derived for the
most part from the Vienna Convention on Diplomatic Relations.
However, as provided in the Diplomatic Relations Act of 1978,
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on the basis of reciprocity, and under terms and conditions
which he may determine, the President may specify privileges
and.immunities for members of the mission, their families, and
the diplomatic couriers of any sending State which result.in
more favorable treatment or less favorable treatment than is
provided under the Vienna Convention.
The United States Government has entered into bilateral
agreements with the People's Republic of China and the Union of
Soviet Socialist Republics on a reciprocal basis providing for
greater immunities for staff level personnel at their
embassies. We also have entered into agreements with China,
the Soviet Union, Poland, Hungary and the Philippines, all of
which currently maintain consulates in the United States, as
well as with Bulgaria, Czechoslovakia, the German Democratic
Republic, and Romania, providing great:- immunities for
consular personnel and members of their families.
This granting of privileges and immunities more favorable
than the treatment required under international law is limited
and done only on a reciprocal basis, where, in our judgment,
higher levels of privileges and immunities are needed to ensure
the effective functioning of U.S. missions in those States. Of
course, treaties of this nature have the approval of the Senate.
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SEC. 2. COMPENSATION FOR VICTIMS OF CRIMES COMMITTED BY
The Department supports section 2, which would provide
compensation for victims of crimes committed by diplomats.
The Department believes that it is the responsibility of
perpetrators of crimes and their governments, in the first
instance, to compensate victims. For its part, the Department
of State makes a great effort to secure such compensation and
has been involved in securing ex r i payments by foreign
governments to injured parties.
We believe that this practice should continue, and the U.S.
Government should look to other sources of compensation for
victims only when it is clear that the foreign government or an
individual is unwilling to compensate the victim and other
sources of relief which might be available have been exhausted.
Nevertheless, the beneficiary of diplomatic immunity
fundamentally is the United States Government because United
States diplomatic personnel abroad could not function without
immunity. Thus, uncompensated crimes are a necessary cost of
'the conduct of foreign relations, and it is reasonable for the
United States Government to bear this cost.
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SEC.3(a). CRIMES COMMITTED BY DIPLOMATS--Records
We support the record-keeping and reporting requirements
envisioned in subsection 3(a), and are prepared to provide such
a report to Congress.
We already maintain records regarding immune personnel who
are alleged to have committed serious offenses, and believe
that sharing this information with Congress is appropriate in
connection with Congress' oversight function and because it may
help deter future offenses.
Accordingly, we propose that the Department of State submit
an annual report concerning serious criminal offenses committed
in the United States by individuals entitled to immunity from
criminal jurisdiction.
In addition, we propose the inclusion of delinquency in the
payment of debts owed by foreign missions and members of such
missions and their families to individuals and entities in the
United States that have been pending with the Department for
six months or more.
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We would be happy to work with the Congress to develop a
reporting requirement which would assist the Department in
resolving such cases.
SEC.3(b). CRIMES COMMITTED BY DIPLOMATS--Education and
Encouragement of Local Law Enforcement Individuals
As regards subsection 3(b), we agree that education of
local law enforcement officials is essential in preventing
abuse of immunities. We are pleased that Congress shares this
interest and support its efforts to do more in this area. We
have discussed this area extensively in our report, so permit
me simply to highlight several important points.
We recognize the importance of assuring that law
enforcement officials fully investigate, document, charge and
prosecute foreign mission personnel or their families to the
extent consistent with the Vienna Convention. Improved
education is the key to ensuring this. Law enforcement
officials need to understand both what can be done to deal
properly with those with immunity and the importance of
thorough investigation and reporting in incidents of crime
allegedly committed by persons with diplomatic immunity.
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In March 1987, the Department published updated, more
comprehensive, written guidance for law enforcement officers on
the handling of incidents involving foreign diplomatic and
consular personnel. Since then about 25,000 copies of this
document have been distributed nationwide to federal, state and
local law enforcement authorities. A second printing is in
progress in order to meet the demand.
In addition, the Department of State's Bureau of Diplomatic
Security has developed a training seminar on the subject to
further educate law enforcement officials. The seminars are
conducted in conjunction with the Office of Protocol and the
Office of Foreign Missions.
Through this process, we have sought to make law
enforcement personnel aware of the varying degrees of immunity
and emphasize the importance of prompt reporting to the
Department of State of criminal offenses allegedly committed by
persons with diplomatic immunity and of carefully documenting
such incidents in accordance with normal police procedures to
ensure that the charges are well-founded and to help us seek a
waiver and compensation for the victim.
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In this regard, I should also like to point out that in
order to be effective in this pursuit, we will have to have the
cooperation of victims as well, who must be willing to press
charges and testify in these cases.
SEC.3(d). CRIMES COMMITTED BY DIPLOMATS--Notification of
Diplomatic Corps
We support subsection 3(d).
The Department makes every effort to notify the diplomatic
community of its policy concerning criminal offenses committed
by its members. For example, a recent circular diplomatic note
dated September 21, 1987, advised the diplomatic missions of
U.S. Government policy in this regard. The Department stated
emphatically that criminal violations would not be tolerated by
the United States Government or the community at large and
summarized the corrective measures consistent with
international law that are taken in cases involving serious
criminal conduct, in particular crimes of violence, recurrent
offenses of a less serious nature, or other egregious abuses of
immunity.
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The Department reiterated that it requests a waiver of
immunity by the sending State so that all allegations may be
adjudicated fully. In the absence of a waiver in a serious
case, the United States requires that the alleged offender
depart the country. In certain cases, the Department would
retain discretion to require the departure of an offender even
though a waiver of immunity may have been granted.
When such cases involve dependents, the Department may
require the removal of the principal from whom privileges and
immunities are derived, plus members of the family when the
sending government declines to waive immunity or the Department
determines that such action is necessary or appropriate.
The Department advised further that in all cases involving
injury to person or property, it pursues vigorously the
interests of the aggrieved parties in obtaining prompt
restitution by individual offenders or by their governments.
The Department also stated that in order to ensure a
complete record in each case, or to lay the basis for possible
prosecution in appropriate cases, it had notified law
enforcement officials throughout the United States to prepare
cases carefully and completely and properly document each
incident at the time of an alleged crime so that charges
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against offenders may be pursued as far as possible in the U.S.
judicial system. To ensure that individuals do not return
without appropriate review by United States authorities, the
Department advised that it requires that the sending government
forward the passport of the offender (and of family members in
appropriate cases) to the Department before he or she departs
the United States-so that the visa may be revoked and the form
1-94 returned to the Immigration and Naturalization Service.
If the offender leaves the United States before the visa is
cancelled, the Department has stated that it may not accept a
replacement on the mission staff of the offender (or of his or
her principal in the case of a crime committed by a dependent),
until the visa is revoked.
We would be happy to update and reissue such a
communication in accordance with this legislation.
As an additional measure, we are distributing copies of the
recent report which we prepared for Congress pursuant to the
Foreign Relations Authorization Act to all of the embassies in
Washington to further inform them and their governments of our
policy in these areas.
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SEC. 4. REGISTRATION AND DEPARTURE PROCEDURES FOR INDIVIDUALS
WITH DIPLOMATIC IMMUNITY
The Department believes that current procedures satisfy
Congressional concern as expressed in section 4 regarding
registration and departure procedures. We therefore do not
oppose enactment of this section.
The Department's registration process requires that for
every person appointed as a diplomat or staff member of an
embassy, or consular officer or employee, the foreign mission
must file the proper Department of State notification form.
Accreditation officers review all these forms for
consistency with the criteria. When questions arise cases are
brought to the attention of superiors, and if further
consultation is necessary, they are reviewed by the
Accreditation Review Panel, which functions under the
co-chairmanship of the Office of Protocol and the Office of
Foreign Missions and includes representatives of other
interested offices.
Once the review process has been completed, all pertinent
data are entered in the computerized record system, which makes
the information instantly retrievable for individual name
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checks and quickly available for personnel listings both in
Protocol and in the United States Mission to the United Nations
(USUN).
Additions and changes to accreditation and registration
records, such as promotions, transfers, terminations, name
changes, and the births of dependents, are all entered into the
database. These changes are contemporaneously made in master
copies of the current issues of three publications: the
"Diplomatic List," "Employees of Diplomatic Missions," and
"Foreign Consular Offices in the United States." The first two
are brought out on a quarterly basis; the third, twice a year.
The entry into the database of all accessions and terminations
has made it possible for Protocol to receive each week
printouts of the cumulative changes in these two categories for
both diplomats and employees, by country, since publication of
the latest lists, which form an important addition to the
materials provided in duty officer kits.
Concurrently with being entered into the computer,
termination notices precipitate the transfer of diplomats' and
employees' hard-copy records from active to inactive files,
where they are maintained in Protocol until permanent
retirement.
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The Office of Host Country Affairs at the U.S. Mission in
New York is responsible for the registration and documentation
of members of permanent missions to the United Nations. It is
also responsible for the registration and documentation of the
Secretary-General and all Assistant Secretaries-General of the
United Nations.
The UN registration system differs from that of the Office
of Protocol because the United Nations is the accrediting
agency. Therefore the UN missions submit the notification
forms of new members to the UN Protocol Office, which
determines whether UN accreditation criteria have been met.
USUN puts out a semiannual publication, "Permanent Missions to
the United Nations," which lists the officers of each mission
entitled to diplomatic privileges and immunities. A master
copy of that publication reflecting all terminations,
additions, and other changes is kept current by USUN, forming
the basis of the next issue.
State Department officers are available 24 hours a day to
confirm the status of anyone claiming immunity.
Recently developed photo I.D. cards, with distinctive
color-coded borders and language indicating the level of
immunity of the bearer as well as 24 hour contact numbers for
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inquiries, are now being issued to members of the diplomatic
communities in Washington and New York, replacing the old-style
identification documents issued over the years.
Upon departure, diplomatic personnel are required to fill
out Form DS-1497a, "Notice of Departure of Foreign Diplomatic
Officer," and submit the form to the Office of Protocol.
Similarly, other government personnel are required to fill out
Form DS-394a, "Notice of Termination of Employment with a
Foreign Government," and submit it to the Office of Protocol.
Identification cards are returned with these submissions. The
Department is closely examining methods of improving these
procedures and, among other things, plans to devise a system
whereby all credentials as well as license plates will be
returned to the Department with the termination forms.
The United Nations requires members of permanent missions
who are leaving to file a form entitled "Notification of Final
Departure of Members of Permanent Missions to the United
Nations," and submit the form to the United Nations Protocol
Office. The information from these forms is compiled by the
U.N. and submitted to the U.S. Office of Host Country Affairs
twice monthly.
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SEC.5. WAIVER OF DIPLOMATIC IMMUNITY WHEN CHARGED WITH A
SERIOUS CRIME--Waiver
The Department welcomes the expression of the sense of the
Congress set forth in subsection 5(a).
As previously noted in testimony regarding subsection 3(d),
the Department often requests waivers of immunity so that all
allegations may be adjudicated fully. Nonetheless, we are sure
that the Congress recognizes that the Department must retain
some flexibility in these situations as waivers are not always
appropriate.
A recent case illustrates that a waiver of immunity is not
always in the interest of the United States. A dependent,
mentally ill son of a diplomat escaped from the institution
where he had been committed by his mother. He was caught in
the course of molesting a child. In this case, the Department
believed that the family member and the principal had to leave
the country in order to protect the safety of U.S. citizens, to
avoid institutionalization at the taxpayers' expense, and to
ensure that the dependent would not come back to visit the
principal.
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As a point of information, however, we note that under
Article II, section 3 of the Constitution, the ability to
accept Ambassadors and other public Ministers is vested
exclusively in the President. This ability includes a
determination of who is and who is not a member of a foreign
mission, and therefore includes the declaration that an
official is non grata and therefore no longer a member of a
foreign mission.
SEC.5. WAIVER OF DIPLOMATIC IMMUNITY WHEN CHARGED WITH A
SERIOUS CRIME--Communication to Immigration and
Naturalization Service
We support subsection 5(b).
Since 1983, the Department has had in place a similar
procedure whereby the Visa Office notifies the central office
of the Immigration and Naturalization Service for entry into
its lookout system of the name of each individual who
voluntarily leaves, or is asked to leave, the United States
because of that individual's alleged involvement in a serious
crime, in order to prevent that person from reentering the
United States. Entries remain in the INS lookout system until
the subject's seventieth birthday.
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SEC.5. WAIVER OF DIPLOMATIC IMMUNITY WHEN CHARGED WITH A
SERIOUS CRIME--Exclusion of Aliens Previously Involved
in Serious Crimes Committed in the United States
The Department objects to subsection 5(c) which would amend
the Immigration and Nationality Act (INA) to add a new
exclusionary category. Currently we have administrative
procedures which we believe address the concern.
If an alien entitled to immunity allegedly commits a
criminal offense or some other act which causes the U.S.
Government to request his or her departure from the country,
the visa revocation procedure, instituted pursuant to Section
221(i) of the INA, is initiated. Under this procedure, the
Office of Protocol notifies the Visa Office and requests that
the visa be revoked, that the alien's name be entered in the
visa lookout system, and that the Immigration and
Naturalization Service (INS) be informed. If for some reason
the passport cannot be obtained for physical cancellation of
the visa before the alien departs the U.S., appropriate
consular posts are instructed to cancel the visa physically.
If the visa is not physically cancelled in the U.S. or abroad,
the information in INS' lookout system will result in the
denial of the alien's readmission to the country in "A" visa
status at some later date.
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.If the alien has allegedly committed a criminal offense, a
warrant may have been issued for the alien's arrest. This
information is available in the visa lookout system to consuls,
who are then in a position to inform the alien and discourage
him or her from traveling to the U.S. If the alien persists
and is otherwise qualified for a visa, the consul can limit the
visa to conform to the alien's specific travel plans and have
the appropriate law enforcement agencies notified. The alien
could then be apprehended upon arrival in the U.S.
Thus, the Bureau of Consular Affairs, as the entity charged
with administration of this program, believes the present
procedures in place for exclusion of aliens are adequate to
meet the purpose and intent of this subsection.
SEC.3. CRIMES COMMITTED BY DIPLOMATS--Interference With Local
Prosecutions'
The Department believes that subsection 3(c) concerning
local prosecutions creates an unwise and unmerited
restriction. It would be troublesome and mischievous. We
cannot support this subsection.
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We are concerned about this provision's ban on "influence"
by the Executive Branch. As worded we believe it may be
intended or construed to ban all Executive Branch contact with
state or local prosecutors.
Obviously, it is not the policy of the federal government
to bring undue or inappropriate pressure on state or local
governments in connection with investigations or prosecutions
of foreign persons. Nonetheless, in cases when a state or
local government investigation or prosecution has foreign
policy implications, the Executive not only has a right, but a
duty, to communicate those implications to the appropriate
state or local authorities. To the extent that this provision
would limit such communications, and we note it is somewhat
ambiguous, it would be unconstitutional. Nor is the
constitutional infirmity posed by this section cured by the
limited waiver authority granted to the Secretary.
Such a restriction would have a chilling effect on members
of the Department, many of whom are required to have frequent
contact with law enforcement authorities.
We note recently that a local prosecutor called upon our
Legal Adviser's Office for assistance in a case where a
defendant was improperly asserting immunity. Without our
assistance in this often arcane area of the law, the prosecutor
may not have been able to brief the matter properly.
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In another example, in a case involving espionage, a U.S.
District Court improperly found a foreign government official
immune, and the State Department had to intervene on appeal to
establish that he did not have immunity.
Thus, there well may be occasions in which the interests of
the United States would be best served by communications from
the State Department to a state or local government about a
criminal proceeding against an alien. The Department has an
obligation to provide factual data to law enforcement
authorities with regard to immunity or inviolability. The
Department cannot be silent if asked about an individual's
immunity.
This prohibition on interference may also invite review of
sensitive Department decisions affecting foreign policy by the
U.S. Attorneys or investigators from other agencies.
While the Bill provides for a waiver by the Secretary to
allow such communication, the waiver procedure would be
time-consuming and burdensome.
The Department currently has internal guidelines governing
contact between Department officers and law enforcement
officials. The Department has established the policy that
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where a foreign official or the relative of such an official is
charged with a crime and is not entitled to immunity from
arrest or prosecution, whether and how the Department should
intervene based upon policy considerations would be decided
after discussion between the Office of the Legal Adviser and
the concerned bureaus. Communications with law enforcement
authorities generally are handled by the Office of the Legal
Adviser. Differences between the bureaus are resolved by the
Under Secretary for Political Affairs in consultation with the
Under Secretary for Management.
SEC. 7 REVIEW OF PROCEDURES FOR ISSUING VISAS TO DIPLOMATS TO
THE UNITED STATES AND UNITED NATIONS
As regards section 7, the Department believes that a
Congressionally mandated review of procedures for issuing visas
to diplomats would not be necessary and we do not support this
section.
As nations already tend to reciprocate in their treatment
of diplomats, it is the Department's experience that the
procedures for processing the equivalent of A visas for United
States diplomats by foreign nations are the same as or similar
to the Department's procedures. The generally accepted
international practice for the issuance of diplomatic visas is
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for the sending State to submit to the embassy of the receiving
State a diplomatic note which identifies the diplomat and the
purpose and length of his or her assignment. These notes are
generally accepted as honest statements of fact. Accompanying
the note is the applicant's passport and, on the basis of
reciprocity, a completed visa application form and photo. The
same procedures apply to family members who either travel with
or follow to join the. diplomat.
In the future, should the procedures imposed by other
countries in issuing diplomatic visas diverge substantially
from U.S. practices, the Department would, of course, be free
to amend the practices to ensure reciprocity.
Should this section remain a provision of the bill,
however, the Department wishes to point out the positions of
"Secretary of State" and "Attorney General" should be reversed,
because the State Department is the primary agency responsible
for visa issuance.
In closing, I wish to express my appreciation for this
opportunity to present views on these matters. We welcome the
Congressional interest in this area and look forward to working
with you in making constructive changes.
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My colleague, Mr. Condayan, will now continue with the
Department's presentation.
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TESTIMONY OF JOHN CONDAYAN
MARCH 30, 1988 - 2:00 P.M.
SUBCOMMITTEE ON INTERNATIONAL OPERATIONS
COMMITTEE ON FOREIGN AFFAIRS
Mr. Chairman, I am also pleased to have the opportunity
today to complement Amb. Roosevelt's statement before the
Subcommittee on International Operations and to address the
role of the Office of Foreign Missions, our policies, the
concerns of Congress, our experience, and to provide additional
comments on H.R. 3036.
The Role of the Office of Foreign Missions
The role of the Office of Foreign Missions, as conceived by
Congress, is to exercise control and management of the
permissible scope of the activities of Foreign Missions, their
staffs and family members in the United States. We do this by
several means, one of which is by co-chairing the Accreditation
Review Panel, a body which reviews and establishes Department
policy on the accreditation of foreign government personnel and
the opening and closing of certain foreign government offices.
The Panel also discusses cases concerning foreign mission
personnel involved in serious allegations of criminal or civil
misconduct. In this process we work with other Panel members
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in formulating and defining the Department's policies and
practices in dealing with such issues. As envisioned by
Congress, we act as an independent office, concerned with the
treatment to be accorded to a foreign mission in the United
States after due consideration of the benefits, privileges, and
immunities provided to our missions abroad. In addition, we,
along with the Office of Protocol, are concerned with
protecting the safety and the security of U.S. Citizens from
diplomatic abuses, and more specifically the victims or injured
parties of an abuse of diplomatic immunities or privileges. It
is our role to balance the legal, foreign policy, political or
other conflicting issues with the interests of the injured
party.
In addition to our participation in the accreditation
policy and process, we have specific responsibility for the
management of the Department's diplomatic vehicle and the
customs programs, which are addressed in this Bill.
The motor vehicle program, controls the registration, sale,
and export of diplomatic vehicles owned or operated by Foreign
Missions and their personnel, enforces liability insurance
requirements for vehicles, licenses and monitors driving
records and violations of Foreign Mission personnel. The four
functions interact as one unit.
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Policies
Our policies governing this program are clearly stated and
communicated to the Foreign Missions. We do not tolerate
abuses of privileges or immunities, and especially those
dealing with abuses of immunities as they pertain to the
operation of motor vehicles.
We require that all vehicles operated by Foreign Missions
or accredited staffs.be registered under the Department's
program.
We require each vehicle to be insured for a minimum of
$300,000 combined single limit or $100,000/300,000 liability
coverage, and $100,000 property damage.
By January 1989, all accredited Foreign mission personnel
will be licensed for the operation of vehicles, by the
Department of State. Applicants holding a license issued based
on standards equivalent to those in the U.S. will obtain our
driver's licenses by satisfying only a vision test. Those who
do not hold a license, or those who hold a license but do not
meet our standards, must submit to a driver's examination
conducted by local authorities in their State of residence.
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In addition to control of initial licensing, OFM monitors
the driving records of Foreign Mission Personnel. In
consultation with various professional organizations dealing
with motor vehicle programs, including the American Association
of Motor Vehicle Administrators and the Insurance Industry's
Committee on Motor Vehicle Administration. We have created an
electronic data bank to record driving history and violations
of each of the licensed operators. Each infraction or
violation is assigned a point value (comparable; yet more
stringent in its application and enforcement than the point
systems used by the majority of the States) for entry into our
electronic file. Accumulation of excessive points (twelve
points) within a 24 month period results in suspension of
driving privileges. Driving under the influence of alcohol or
reckless driving results in the immediate suspension or
permanent revocation of an individual's driving license and
privileges. These driving records are available to the
insurance companies and shortly will be accessible to law
enforcement agencies through the National Law Enforcement
Telecommunications System (NLETS), via the Treasury Enforcement
Communications System.
Pursuant to the FY-88-89 Foreign Relations Authorization
Act, the Department recently submitted to you a study prepared
by a panel of insurance industry officials and experts, which
considered the adequacy of the currently required automobile
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liability insurance, and examined the feasibility of increasing
current minimum limits. The experts concluded, on the basis of
independent actuarial data, as well as individual analysis of
available industry-wide loss data, that our current minimum
liability insurance requirements are adequate. They projected
that over 99% of all auto claims will fall within the current
limits required. They also noted the limit on liability
insurance imposed by the Department is well above the limit
most Americans carry voluntarily and above the minimum
requirement of individual States. In this context we must
remember that it is extremely difficult to create a no-risk
environment.
Lastly, our policy on parking and moving violations has
been clearly stated to the diplomatic community. While we
recognize that there may be some extenuating special
circumstances, we insist that parking violators pay their
fines. In Chicago, for example we have worked with city
enforcement officials to establish procedures by which the
Chicago police no longer dismiss either parking or moving
violations submitted by Foreign Consular Officials and their
dependents. All moving violations submitted to the city are
returned with instructions to comply with the provisions of the
citation. With a few exceptions, the same applies to parking
violations. As .a result of these new policies, the number of
unpaid violations have dramatically declined.
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Provisions of H.R. 3036
Ambassador Roosevelt has already commented on several
provisions of H.R. 3036. There are a few other provisions that
I would like to address briefly. I will begin with Section 8,
which would require the Department to raise minimum liability
insurance for foreign missions and their personnel to
$1,000,000. This issue was addressed in our report submitted
to Congress pursuant to the FY-88-89 Authorization Act. On the
basis of our study, we are confident that the existing
insurance limits can reasonably be expected to afford adequate
compensation for injury to persons or property resulting from
or arising out of automobile accidents. The Department
recommends that the present levels be maintained and
periodically reviewed for adequacy.
As I indicated earlier, OFM now requires automobile
insurance with minimum $100,000/$300,000/$100,000 coverage.
The Committee has before it the results of the study of
automobile insurance that the Department completed in
accordance with the 1988/89 Authorization Act. That study
concluded that existing coverage limits are adequate, and that
an increase in minimum coverage to $1,000,000 would require a
substantial increase in premiums, and would lead to the
unavailability of insurance for some foreign mission
personnel. If enacted, the section could have serious and
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harmful reciprocity effects on U.S. personnel abroad.
Governments whose missions are effectively precluded from
driving in the United States would be likely to impose the same
restrictions on U.S. personnel. The overseas operations of the
many U.S. agencies that operate at our embassies and consulates
could be paralyzed.
I would like to turn now to Section 9, which would require
OFM to establish "liability insurance requirements" for foreign
missions to cover risks other than those associated with
automobiles.
The Department's understanding is that this provision was
intended to require insurance to compensate victims of crimes
committed by individuals who cannot be sued in our courts
because of their immunity. The Department is not aware that
any such insurance exists. The outside experts who prepared
the study of insurance required by the Authorization Act
concluded that this type of catastrophic insurance may not be
readily available. They state in their report that the only
major type of insurance that covers loses arises out of
criminal activity relates to money and securities, which is
known as "crime insurance". This is first party coverage,
which does not extend to third party victims and which is
underwritten under strict guidelines.
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Apart from criminal activity, there may be instances in
which U.S. citizens seek compensation from foreign missions and
their personnel for negligent acts. A mission itself, unlike
its personnel, is not governed by diplomatic immunity. Thus, a
mission may be sued for negligence under the Foreign Sovereign
Immunities Act. In such a case, it would be up to the courts
to determine whether or not the doctrine of sovereign immunity
barred the suit.
Finally, I would like to comment briefly on. Section 10,
which urges the President to review the treatment of diplomatic
pouches and to seek in every appropriate forum the adoption of
measures that ensure that pouches are not used to smuggle
drugs, narcotics, and materials to foster terrorism.
The Department and other parts of the Executive Branch have
recently been involved in a thorough review of U.S. policies
and international laws with respect to the pouch as part of our
consideration of the UN's International Law Commission draft
convention on the pouch. In this assessment, the United States
must weigh its competing interests as both the largest sender
and largest recipient of diplomatic pouches. On balance, we
have concluded that our interest as a sender requires that we
seek, to the maximum extent possible, to preserve the integrity
of the pouch. Such integrity is protected by present law,
Article 27 of the Vienna Convention on Diplomatic Relations,
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which provides that diplomatic pouches may not be opened or
detained. We believe that U.S. interests are best served by
preservation of that regime.
While there have been instances of abuse of the
inviolability of the pouch, it has been our experience that
such abuses for the illicit transportation of narcotics,
explosives, or weapons are relatively rare compared to the
reasonable and proper uses routinely made of the bag.
Moreover, the existing general procedures used by foreign and
domestic authorities for detection of the entry of such items
are sufficient to discourage abuses. In recent years, there
have been proposals to change the existing regime regarding the
pouch to permit under a variety of circumstances the
examination of the pouch by X-ray or other means. As the
largest sender of diplomatic pouches, the United States has
traditionally been of the view that the inviolability of the
pouch must be maintained and we have resisted such changes in
the current regime. The diplomatic pouch is utilized to send
classified and sensitive documents and.articles, including
communications and ciphering equipment, which is vital to the
operations of our missions abroad and the accomplishment of our
foreign policy and national security objectives.. Any
provisions which would allow scanning of the bag risks
compromising the confidentiality of sensitive communications
equipment and other contents of the bag.
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We are pleased that Congress has shared our interest in
these issues and we welcome your efforts to help us. I shall
be happy to answer any questions, Mr. Chairman.
March 28, 1988
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