Non-Portability of American Rights


In the November 2007 issue of Fast Company, Jonathan Green wrote “Nightmare in Boomtown,” an article that I think should be part of the reading fare for Americans intending to do business abroad. This piece is about Mark Siedenfeld, a married rabbi who originally went to Russia in 1991, became a telecom executive drawn to the post-Soviet boom, had a business partner murdered in broad daylight in Moscow, then went through a 19-month trudge through the post-Soviet justice system, including 11 months in a Siberian prison, and an extradition to Kazakhstan (where he was eventually declared not guilty for charges of embezzlement).

This is a cautionary tale, for sure. But there is also the misconception about the U.S. Government’s influence when something like this happens abroad. The article mentioned that Siedenfeld’s supporters (unnamed in the article) “had been stunned by the apparent reluctance of U.S. Ambassador to Kazakhstan John Ordway to help an American citizen in distress. The ambassador had met with the Kazakh general prosecutor, but nothing had come of it. Beyond that, he sent Seidenfeld a few magazines and some energy bars in prison.” In another part of the article, it says “As the months passed after his arrest, Siedenfeld came to the creeping realization that he’d been hung out to dry. The State Department had done next to nothing to get him sprung, despite pleas for help to the consulate.”

The notion that the U.S. Government by virtue of its power and influence can “sprung” anybody from a foreign jail is quite absurd.Let’s put this simply – let’s say we have a Kazakh national languishing in a Detroit jail for embezzlement (or it could be any other national, or any other crime, take your pick). How would you feel, if the Kazakh Ambassador to the U.S. demands that our Attorney General sprung this individual from our jail? Can you imagine the uproar that would make? From experience, more than a few of our nationals do expect American Ambassadors or American Consuls to spring them out of jail. Not only that, some Americans also expect that the U.S. Marines would come to extract them when they get into trouble overseas. Would you expect Kazakhtan’s military to send in their Marines to extract their Kazakh national from our jail? Absolutely not!

A note on the energy bars – U.S. Embassies normally do not have regular funds for something like energy bars for incarcerated Americans. There is, however, something called the Emergency Medical/Dietary Assistance (EMDA) under Public Law 95-45, which authorized the Department of State to provide, on a reimbursable basis when possible, medical and/or dietary assistance to U.S. citizens/nationals incarcerated abroad when private sources for this assistance are not otherwise available. You can read more about EMDA here.

I must add here that I have seen consular officers bring dinners to incarcerated Americans during Thanksgiving. I have seen Foreign Service spouses who have cook meals for Americans in jails, and they’re not even employed by the U.S. Government! We have Consular Sections with collection tubs for hotel give-aways like soap, toothpaste, toothbrushes, shampoos, etc. Our diplomats who frequently traveled are gently asked to bring back hotel give-aways so these can be distributed to Americans in jail or those in distress.Why? Uhm — because our Embassies do not have money to pay for these basic necessities, and most foreign jails barely have money to feed their prisoners, much less provide these necessities. In any case, it is possible that Mr. Siedenberg’s energy bars were bought with EMDA funds, or were funded from contributions from American businesses operating in the area (I am speculating here) but it is also a good possibility that they came out of Ambassador Ordway or some nameless Consul’s personal funds.

Here’s the lowdown — if you intend to do business abroad, be sure to conduct due diligence before diving head on and have a risk mitigation plan in place. Yeah, yeah, yeah, these can be a hassle but these hassles are minor compared to the prospect of navigating the justice system overseas, if you tumble. Take to heart what the State Department says about your American rights … “The rights an American enjoys in this country (the United States of America) do not travel abroad. Each country is sovereign and its laws apply to everyone who enters regardless of nationality. The U.S. government cannot get Americans released from foreign jails. However, a U.S. consul will insist on prompt access to an arrested American, provide a list of attorneys, and provide information on the host country’s legal system, offer to contact the arrested American’s family or friends, visit on a regular basis, protest mistreatment, monitor jail conditions, provide dietary supplements, if needed, and keep the State Department informed. You can read more here.

In short, your rights as an American citizen are non-portable; you cannot take them with you. When push comes to shove, you can proclaim, “I am an American,” as loudly as you can but – when you are overseas, you are fully subject to the laws of your host country and at the mercy of a foreign justice system that may have little or no resemblance to our own.