7 FAM 400 Appendix A
requests for clemency, pardon, and release of prisoners
on humanitarian grounds or other reasons
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 410 Appendix A SUMMARY
(CT:CON-449; 03-25-2013)
a. Post recommendations regarding requests for
clemency, pardon, amnesty, or release of a prisoner on humanitarian grounds or
for other reasons believed to be compelling are essential. The Department
recognizes that policy guidance on this subject in the Foreign Affairs Manual
cannot cover all new situations with which posts are confronted. The
discussion in this appendix is not intended to be all-inclusive. We must be
flexible and find creative approaches to sensitive and often fast-moving
circumstances.
b. Prior approval by the Department is required, except
in emergency situations where post must act immediately to safeguard our
citizens, before a post makes any request for clemency, pardon, amnesty, or
release of a prisoner on humanitarian grounds or other reasons believed to be
compelling. Department consideration and coordination is critical to ensure
that any interventions by the United States are fully warranted, are being
pursued in limited and comparable circumstances, are likely to have a
productive impact, and would not, if pursued by a foreign government against
the United States in a comparable situation, be seen as unwarranted political
interference in a legitimate judicial process.
c. In a critical emergency, the CA/OCS Duty Officer is
available 24/7, and can arrange a conference call with post, senior Consular
Affairs officials, the regional bureau, the L Duty Officer, the CA/OCS/L Duty
Attorney, and other appropriate bureaus.
d. For cases that do not require after-hours action,
after receipt of posts cable setting forth post observations and conclusions,
CA/OCS/ACS will coordinate with the regional bureau and other appropriate
functional bureaus a fact-based review, considering the totality of
circumstances and the potential for the accused to receive a fair judicial
review, taking our lead from post recommendations. CA/OCS/L
(Ask-OCS-L@state.gov) will coordinate law and policy clearances with the Office
of the Legal Adviser for Consular Affairs (L/CA), the Office of the Legal
Adviser for Law Enforcement and Intelligence (L/LEI), and other senior policy
makers.
e. Post leadership should feel free to contact
principals in CA/OCS, including but not limited to the Directors of CA/OCS/ACS,
CA/OCS/L, the CA/OCS Managing Director, and Deputy Assistant Secretary for
Overseas Citizens Services, for support as we seek Department approval for
posts proposed course of action.
7 FAM 420 Appendix A Humanitarian
Grounds
(CT:CON-406; 05-23-2012)
a. The following are examples, and only examples, of
considerations the Department takes into account regarding U.S. Government
requests for clemency, amnesty, pardon, or release, on humanitarian grounds on
behalf of U.S. citizens incarcerated abroad. This is not all-inclusive and
should not be regarded as a checklist.
Health of the prisoner (not guilt or innocence)
Lack of fundamental due process under local law or international
standards, including compelling evidence of a politically motivated, biased, or
corrupted process
Compelling circumstances relating to the prisoner's family (e.g.,
imminent death of member of immediate family, sole support, etc.)
Significant risk to the physical safety of the individual while
incarcerated due to the inability or unwillingness of the local or central
government to safeguard the individual while in custody
Compelling evidence of factual innocence where the judicial
system does not provide adequate due process safeguards to ensure a fair
proceeding
b. Under no circumstances may the U.S.
Department of State or a post abroad suggest that any amnesty, pardon,
clemency, release on humanitarian grounds, or humanitarian parole provided by
foreign authorities be on a reciprocal basis. In the United States, pardons are
granted only in the rarest of circumstances by the highest-level officials at
the State or Federal level.
c. Prisoners and their families, attorneys, or
Congressional representatives may, of course, initiate their own requests to
the host country for clemency or pardons, etc.
d. Consular officers may provide prisoners with
information available from the host government about pardon procedures.
7 FAM 430 APPENDIX A Human Rights
Grounds
(CT:CON-449; 03-25-2013)
a. If the legal and human rights of U.S. citizens and
nationals arrested abroad are to be adequately protected, we must be prepared
to protest substantiated violations and abuses of those rights. Such rights
are prescribed, among other instruments, in the Universal Declaration of Human
Rights (1948) and for States Parties the International Covenant on Civil and
Political Rights (ICCPR) and the Convention Against Torture (CAT) as well as
regional human rights treaties. Violations and abuses may include torture and
other cruel, inhuman, or degrading treatment and discrimination based on race,
religion, gender, national origin, or other protected ground (see additional
information below).
b. Department approval is generally required before a
post asserts to a foreign government that it is in violation of its human
rights obligations with regard to a prisoner. An alternative approach can be
to raise a substantiated abuse rather than a violation as abuse is not a
legal term -- or to remind the foreign government that the United States
expects it to uphold its human rights obligations pertaining to the treatment
of a prisoner(s).
c. The purposes of protests include:
(1) Protecting U.S. citizen prisoners against further
abuse or violation of their rights;
(2) Impressing on the host government that the U.S.
Government is seriously concerned about the welfare of its citizens and
nationals and will not condone or tolerate violation of their rights;
(3) Protecting future U.S. citizen detainees against
similar maltreatment;
(4) Improving the general level of treatment of U.S.
citizens and nationals arrested and detained in foreign countries and
(5) Requesting release of U.S. citizen prisoners whose
human rights have been abused.
d. Political Prisoners:
(1) The Department recognizes that when a U.S. citizen
is arrested for political grounds, the safety of the U.S. citizen political
prisoner is at high risk solely by the fact of his/her detention/imprisonment.
In many of these cases, the prisoners are summarily arrested and not informed
of or charged with any specific criminal actions or held without charges.
Often, they are immediately placed in solitary confinement without benefit of
any legal due process. This situation alone causes significant stress on the
prisoner, thus beginning the cycle of repression and debasement. For this
reason, political prisoners should never be considered on a par with U.S.
citizens who have been imprisoned on criminal charges pursuant to due process
of law. Political prisoner cases vary widely depending on the country involved
and the political message that country wishes to convey to the United States
through the imprisonment of the person.
(2) Because of these diverse factors, CA/OCS/ACS and
posts must confer closely and often on such cases. Due to the multi-faceted
nature of these cases and the variety of valid, overlapping interests evident
in these cases, posts and ACS should endeavor to bring other offices and
bureaus of the Department that have interests from the human rights, legal, and
political standpoints into the conversation at the earliest opportunity.
Often, these other Department organizations have at their disposal other
options to advocate for the proper treatment and eventual release of the
prisoner. A coordinated, unified approach rather than singlehanded actions
work more to the advantage of the prisoner.
(3) Mistreatment of such prisoners is often subtle,
and difficult to document. Such prisoners are closely watched by host country
officials and will not be free to complain of mistreatment. Even mild
references to conditions may result in serious repercussions. Psychological
and physical abuse may not be immediately evident to the untrained eye. It is
therefore, incumbent on the Department to listen closely to post observations
based on repeated visits to such prisoners by consular officers and high-level
embassy/consulate officials. These observations and advice should be examined
carefully and taken into serious account when making decisions about future
Department actions as we craft a request to either protest or request release
of the prisoner on human rights grounds or any other grounds. CA/OCS/L (Ask-OCS-L@state.gov)
senior policy analysts have experience in formulating such requests and in
working with the Office of the Legal Adviser for Human Rights and Refugees
(L/HRR), Democracy, Human Rights and Labor (DRL), and international
organizations on these issues and are available to assist posts in this regard.
e. The following non-binding consensus U.N. instruments
on treatment of prisoners can be helpful in informing discussions about this
subject:
(1) U.N. Standard Minimum Rules for Treatment of
Prisoners (1977)
(2) U.N. Basic Principles for Treatment of Prisoners
(1990)
f. See also the 1948 Universal Declaration on Human
Rights, the U.N. Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984) to which the United States is a party,
and the International Covenant on Civil and Political Rights (ICCPR) (1966) to
which the United States is a party, and in particular ICCPR:
Article 6 on Right to Life
Article 7 prohibiting Torture and Cruel, Inhuman and Degrading
Treatment or Punishment
Article 8 prohibiting Slavery and Servitude
Article 9 on the Right to Liberty and Security of the Person and
prohibiting arbitrary arrest or detention
Article 10 on Humane Treatment of Persons in Detention
Article 14 on Equality before the Courts and Due Process of Law
Article 15 prohibiting Ex Post Facto Criminal Offenses
Article 16 on the Right to Recognition as a Person Before the Law
Article 26 on Equality Before the Law and prohibiting
discrimination on the basis of race, color, sex, language, religion, political
or other opinion, national or social origin, property, birth, or other
status.
7 FAM 440 Appendix A OTHER GROUNDS
(CT:CON-449; 03-25-2013)
a. Humanitarian and human rights are not the only
grounds that may warrant requests for clemency, pardon, amnesty, or release of
a prisoner. There is no litmus test or check list of criteria that a post must
apply for such a request to be considered. The Department relies on posts
expertise and hands-on knowledge of the situation to inform policy decisions in
these matters. Do not hesitate to bring cases to the Departments attention
for serious consideration. We appreciate posts diligence and foresight in
ensuring the protection of U.S. citizens in these difficult circumstances.
b. Posts are also advised to consider any prisoner
transfer treaties to which both the United States and the host government are
parties. See 7
FAM 480. Questions about prisoner transfer should be directed to CA/OCS/L
(Ask-OCS-L@state.gov).
7 FAM 450 Appendix A through 490 Appendix A Unassigned