(concurring in part; dissenting in part).
I concur with the majority opinion in affirming the judgment of conviction of appellants Hui Lin, Nai Fook Li, Yiu Ming Kwan, and Ju Lin. These appellants failed to preserve for appeal, their rights under Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, 1967 WL 18349 (ratified November 24, 1969) (hereinafter “Vienna Convention”) and Article 35 of the United States — People’s Republic of China Bilateral Convention on Consular Relations, September 17, 1980, 33 U.S.T. 2973, 1982 WL 212240 (ratified February 19, 1982) (hereinafter “Bilateral Treaty”). See, e.g., Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 1354-55, 140 L.Ed.2d 529 (1998) (appellant procedurally defaulted his claim under the Vienna Convention by not raising and preserving the issue). However, such is not the case with respect to appellants Mao Bing Mu, Sang Li, and Ben Lin (hereinafter referred to collectively as the “appellants”). They did raise and preserve for appeal the issues before us regarding Article 36 of the Vienna Convention and Article 35 of the Bilateral Treaty. It is as to them and those issues that I respectfully disagree with my colleagues in the majority.
It is my view that the Government of the United States failed to comply with Articles 36 and 35, respectively, in not advising appellants upon their detention of their right to consular assistance. These provisions, once ratified by the Senate, constitute self-executing municipal law of the United States, which is individually enforceable in the courts of this country upon proper request by an affected detainee. Notwithstanding this conclusion, because the record has not been fully developed as to the possible prejudice that may have been suffered by appellants by reason of the violation of their rights, I would remand this case to the district court for an inquiry into these matters. Furthermore, if prejudice is found, the district court is initially in a better position to fashion a remedy, and I would thus defer to such a finding in the first instance.
Because such is my opinion, the thrust of my comments are directed to the first of the two issues for which the en banc court was convened: whether the Vienna Convention and/or the Bilateral Treaty create individual rights to consular notification and access that are enforceable by such individuals in court proceedings. Cf. *69Breard v. Greene, 118 S.Ct. at 1855 (the Vienna Convention “[a]rguably confers on an individual the right to consular assistance following arrest”) (emphasis supplied).
I. Individual Rights Were Created By The Vienna Convention and The Bilateral Treaty
Although our Nation is one in which the rule of law is cherished in action as well as principle, and the maxim pacta sunt ser-vanda has flourished, most courts facing claims such as are before us have sidestepped the enforcement of the rights established under the Vienna Convention and Bilateral Treaty, even in the face of finding a violation of treaty obligations entered into by the United States. See Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.1996) (“Texas admits that the Vienna Convention was violated”); Breard v. Netherland, 949 F.Supp. 1255, 1263 (E.D.Va.1996) (“Virginia’s persistent refusal to abide by the Vienna Convention troubles the Court”). This Court has unfortunately chosen to follow suit.
The ensuing colloquy took place before the panel originally hearing this appeal:
The Court: Does it [the Vienna Convention] require that the individual be notified immediately?
Government Counsel: Well, yes it does. There is no question that this treaty was violated in this instance and the United States is not saying that it wasn’t violated. We are simply saying that no court has granted a defendant any kind of relief in the absence of a showing of prejudice.
Oral Argument of April 6, 1999. Government counsel’s frankness in admitting the obvious is commendable, although more recently the Justice Department seems to have retrogressed from this position, and, as is apparent from the majority opinion, the concessions made at oral argument are for naught.1
At least part of the majority’s confusion stems from its basic misconception as to the nature of the rules that are before the Court. We are no longer merely considering international agreements to be administered or enforced at the discretion of the State Department, in which its interpretation as to applicability is entitled to special expertise or deference. Cf. United States v. Stuart, 489 U.S. 353, 369, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989) (“[T]he meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight”). As will be further elucidated, once ratified by the Senate, both the Vienna Convention and the Bilateral Treaty became the municipal law of the United *70States pursuant to the Supremacy Clause,2 and its provisions enforceable in the courts of the United States at the behest of affected individuals without the need for additional legislative action.
II. The Self-Execution of Treaties in the United States
In stating the “general rule” that treaties do not create individually enforceable rights, the majority completely ignores the well-established doctrine of self-execution. See, e.g., United States v. Green, 671 F.2d 46, 50 (1st Cir.1982). I recognize that the interplay between the general rule and the doctrine of self-execution has been confused over the years, but that confusion stems from the failure to take into account the origins of the doctrine of self-execution as well as the reasoning that led to its creation. See generally Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l 695, 699 (1995).
The general rule has its roots in English law. See J.G. Starke, Introduction to International Law 81-82 (10th ed.1998); J.G. Collier, Is International Law Really Part of the Law of England?, 38 Int’l & Comp. L.Q. 924, 925-26 (1989) (citing The Parliament Beige, 4 P.D. 129 (1879)); see also Ware v. Hylton, 3 U.S. (3 Dall.) at 256, 274-275, rev’d on other grounds, 3 U.S. (3 Dall.) 199, 1 L.Ed. 568 (1796). In the English system, treaties are entered into, and concluded, by the Crown without any intervention by Parliament. Consequently, treaties are ineffectual domestically without implementing legislation from Parliament.
Dissatisfaction with that system, and the anarchical consequence that binding treaties were often practically unenforceable, led our Founding Fathers to abandon the English system in favor of our Constitution’s system of treaty negotiation by the Executive and ratification by the Senate. By its unambiguous text the Supremacy Clause declares treaties to be “the supreme Law of the Land”, and thus automatically incorporates these international agreements into the domestic law of the United States, without the need for further action once the treaty is ratified by the Senate. The effect is to render treaty provisions enforceable in the courts at the behest of affected individuals, in applicable cases. See United States v. Alvarez-Machain, 504 U.S. 655, 667, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (“The Extradition Treaty has the force of law, and if ... it is self-executing, it would appear that a court must enforce it on behalf of an individual regardless of the offensiveness of the practice of one nation to the other nation”); United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir.1995) (same). Contra Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (Bork, J., concurring) (“Treaties in the United States do not generally create rights that are privately enforceable in courts”).
In one of the first cases to consider the applicability of the British rule under our constitutional system, the Supreme Court stated that:
In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is consequently, 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.
Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829); cf. United States v. Percheman, 32 U.S. (7 Pet.) 51, 8 L.Ed. 604 (1833); see also Edye v. Robertson (“Head Money Cases”), 112 U.S. 580, 598-99, 5 S.Ct. 247, 28 L.Ed. 798 (1884) (“A treaty, then is a law of the land as an act *71of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined.”)
Unfortunately, we are no longer in the same playing field that existed when the Court decided Foster and Percheman, whose holding has since been distorted beyond recognition with the tail end of the quoted language often wagging the principal rule established by those cases. Cf. Goldstar (Panama), S.A. v. United States, 967 F.2d 965, 968 (4th Cir.1992); Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir.1985); Cardenas v. Smith, 733 F.2d 909, 918 (D.C.Cir.1984); Tel-Oren v. Libyan Arab Republic, supra; British Caledonian Airways v. Bond, 665 F.2d 1153, 1160 (D.C.Cir.1981); United States v. Postal, 589 F.2d 862, 874 (5th Cir.1979).3 The bottom line to these cases seems to be that we should look to the “intent” of the treaty to determine whether it is self-executing, or more in point, whether it creates rights that individuals can enforce in the courts. As the majority purports to recognize, however, we begin this inquiry with the terms of the treaty. See Alvarez-Machain, 504 U.S. at 666, 112 S.Ct. 2188 (courts look first to a treaty’s terms to determine its contents); Stuart, 489 U.S. at 365-66, 109 S.Ct. 1183 (“the clear import of treaty language controls unless ‘application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories’ ”). If we look to this guideline as the starting point to our inquest in the present appeal, I fail to see why further analysis is required or is appropriate.
III. The Text of Articles 36 and 35 of the Vienna Convention and Bilateral Treaty
Contrary to the majority’s characterization, the language of the Vienna Convention and the Bilateral Convention is anything but ambiguous. Section 36(l)(b) unequivocally states that:
The ... authorities shall inform the person [detained] ... without delay of his rights [to consular notification and assistance].
(Emphasis supplied). This language, particularly that which I have emphasized, (1) mandates (“shall”) action, (2) without delay, (3) by the detaining “authorities,” which action is, (4) to “inform” the detained “person”, (5) “of his,” (6) “rights” to seek assistance from his consular representatives. This provision does not entail arcane or obscure parlance, or require the application of complex notions or of concepts that are difficult to understand or decipher. It simply requires a detaining authority in the United States, as soon as a foreign national is detained, to inform him or her of their right to request consular assistance with regards to the detention.
Were we dealing with such text in a statute originally enacted by Congress rather than this species of “Law of the Land,” is there any doubt as to how this provision would be interpreted? We might very well quarrel, for example, as to how much time could pass after detainment before the failure to notify the alien of his/her rights was unreasonable, or there might be an issue as to whether there was a “detention” such as triggered the notification obligations imposed upon the authorities, or such other scenarios as are commonly litigated under similar doctrines; such as Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). But it is almost beyond cavil, were we faced with facts such as are presented by this appealed, with a statute reading as does Article 36, that the outcome would be *72preordained. The authorities would be found to have violated appellants’ rights in failing to inform them of their right to consular assistance while detained for approximately 50 days and shipped from one side of the globe to the other and back again.
In fact I have some difficulty envisioning how it is possible to frame language that more unequivocally establishes that the protections of Article 36(l)(b) belong to the individual national, and that the failure to promptly notify him/her of these rights constitutes a violation of these entitlements by the detaining authority. I must also confess to no small amount of bafflement, not to say disappointment, with the reluctance demonstrated by my colleagues in the majority, as well as other courts, in refusing to provide a forum for the vindication of what amounts to a confessed and flagrant violation of our national law by the Government. I would ask, what arena is more appropriate than the courts of the United States, for an individual to seek the validation of his/her rights against Governmental transgression of its own laws and regulations? See Fort Stewart Schs. v. FLRA, 495 U.S. 641, 654, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990) (citing Vitarelli v. Seaton, 359 U.S. 535, 547, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), and Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957)). “Indeed, given that a treaty should generally be ‘construed ... liberally to give effect to the purpose which animates it’ and that ‘[e]ven where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred,’ ” Stuart, 489 U.S. at 368, 109 S.Ct. 1183, I am at a loss to find rhyme or reason in the majority’s conclusions.
The majority makes much of the preamble to the Vienna Convention, which states, inter alia:
The State Parties to the present Convention,
Believing that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations, ... Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing states,
Have agreed as follows.
23 U.S.T. at 3230 (emphasis supplied). The majority argues that the underscored language specifically excludes the claim of individual rights made by appellants. I find this a specious contention.
It is clear that in the context in which this provision is framed (e.g., “such privileges and immunities”), it refers to the privileges and immunities of “diplomatic agents” qua diplomatic agents, and not with respect to the individual rights established in Article 36(l)(b) for the benefit of detained nationals. See United States v. Rodrígues, 68 F.Supp.2d 178, 182 (E.D.N.Y.1999); see also Mark Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int’l L. 565, 594 (1997).
I would add that reliance on this language to attempt to defeat appellants’ claim of individual rights has an additional downside for those espousing this dubious position. If the inclusion of this language in the preamble to the Vienna Convention has the significance attributed to it, then the exclusion of this same wording from the preamble or text of the Bilateral Treaty with China, a specific accord on a similar subject which postdates the multinational Vienna Convention by thirteen years, should lead to the opposite conclusion, that is, it should mean that individuals do have such rights under the Bilateral Treaty. However such mental gymnastics *73are unnecessary, because the Bilateral Treaty’s language is even more precise than that of the Vienna Convention in establishing individual rights.
Not only does the preamble of the Bilateral Treaty explicitly state as one of the goals of this treaty, “the protection of the rights and interests of their nationals ... (emphasis supplied), stated as a separate item from the goal of protecting the interests of the contracting nations, but Article 35(3) of this treaty precisely requires that:
The competent authorities of the receiving State shall immediately inform the national of the sending State of the rights accorded to him by this Article to communicate with a consular officer.
(Emphasis supplied). This explicit detailing of the obligation and concurrent right should require us to proceed no further in our recognition of appellants’ claims. However, the majority’s reliance on so-called “nontextual sources” and “legislative history” as support for its conclusions, forces us to reluctantly delve into that morass, notwithstanding the good advice that caution us to the contrary when statutory language is unambiguous. See Immigration & Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 452, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (Scalia, J. concurring) (“[I]f the language of a statute is clear, that language must be given effect ... at least in the absence of a patent absurdity.”). In any event, the “nontextual sources” and “legislative history” cited by the majority in actuality fully support appellants’ contentions.
IV. The Background to Article 36 of the Vienna Convention
Of all the provisions of the Vienna Convention, the one with the “most tortured and checkered background is indubitably Article 36.” See Luke Lee, Vienna Convention on Consular Relations 107 (1996). This provision was the subject of extensive and divisive debate before it was finally approved, with the differences centering mostly on the question of the foreign national’s autonomy and rights under the proposed Article 36. Id. at 107-14; see also 1 United Nations Conference on Consular Relations: Official Records, at 3, U.N. Doc. A/Conf. 2%, U.N. Sales. No.63.X.2 (1963) (hereinafter “U.N. Official Records”).
The positions of the delegates from the United Kingdom and Australia were typical of the prevailing view. The former expressed his rejection of a proposal that a consul be notified only if the detained national so requested, because “[i]t could well make the provisions of Article 36 ineffective because the person arrested might not be aware of his rights.” Id. at 83-84 (emphasis supplied); see also id. at 339, 344. The Australian delegate stated along a similar vein, that “[tjhere was no need to stress the extreme importance of not disregarding, in the present or any other international document, the rights of the individual.” Id. at 331 (emphasis supplied). In fact the United States delegate proposed an amendment to Article 36(l)(b) that the notification to a consul of a national’s detention be made at the request of the national, “to protect the rights of the national concerned.” Id. at 337 (emphasis supplied). From these and other statements by the various national delegates there should be little doubt that the treaty under consideration concerned not only consular rights but also the separate individual rights of detained nationals. Id. at 37 (statement of Soviet delegate); id. at 37, 82, 85, 339, 345 (statements of Tunisian delegate); id. at 38 (statement of Congolese delegate); id. at 339 (statement of Greek delegate); id. at 338 (statement of the Korean delegate); id. at 332, 344 (statement of Spanish delegate); id. at 81, 339, 340-01 (statement of the Indian delegate); id. at 82, 332 (statement of the French delegate); id. at 84 (statement of the Federal Republic of Germany); id. (statement of the delegate of Brazil); id. at 331 (statement of the delegate of Venezuela); id. at 332 (statement of the delegate of Kuwait); id. at 335 (statement of *74the Swiss delegate); id. at 336 (statement of the delegate of New Zealand); id. at 343 (statement of the delegate of Ecuador); see also Mark Radish, Article 36 of the Vienna Convention on Consular Relations: A Search For the Right to Counsel, 18 Mich. J. Int’l L. 565 (1997) (discussing the Vienna Convention’s history in this respect); Report of the United States Delegation to the United Nations Conference on Consular Relations, Vienna, Austria, March I to April 22, 1963 (hereinafter “U.S. Vienna Report”).
During the course of the debate, the United Kingdom submitted the amendment to Article 36 that eventually became the final approved version of paragraph (b)(1), requiring the detaining nation to inform the detained foreign national of his/ her right to consular access. The amendment was adopted 65 votes to 2, with 12 abstentions. The United States delegate voted in favor of the amendment. See U.S. Vienna Report at 60.
The Letter of Submittal of Secretary of State William P. Rodgers to the President dated April 18, 1969 is enlightening. In it Secretary Rodgers, in referring to Article 36(l)(b) indicates that:
It requires that authorities of the receiving State inform the person detained of his right to have the fact of his detention reported to the consular post concerned and his right to communicate with that consular post. If he so requests, the consular post shall be notified without delay.
(Emphasis supplied).
The U.S. Vienna Report, which is attached to the Letter of Transmittal states the following:
The solution adopted by the Conference to the problem of adjusting the notification obligations of the receiving State to the right of the individual concerned to request notification lies in the final sentence of subparagraph 1(b). That sentence requires authorities of the receiving State to inform the person detained of his right to have the fact of his detention reported to the consular post concerned and of his right to communicate with that consular post. This provision has the virtue of setting out a requirement which is not beyond means of practical implementation in the United States, and, at the same, is useful to the consular service of the United States in the protection of our citizens abroad.
(Emphasis supplied).
The Letter of Transmittal also includes the Report from the Committee on Foreign Relations reporting favorably on the Vienna Convention and recommending that the Senate give its advice and consent to the same. See Sen. Exec. Rep. 91-9, 91st Cong., 1st Sess. (1969). The Senate Report attaches the testimony of J. Edward Lyerly, the Deputy Legal Advisor for Administration before the Committee in which he states at the outset that “[t]he Convention is considered entirely self-executive and does not require any implementing or complementing legislation.” (Emphasis supplied).
There is further evidence in actions taken by the State Department ante litigio, supportive of appellants’ claims.4 Much can be found in the Department’s booklet entitled “Consular Notification and Access,” a document instructing federal, state, and local law enforcement personnel regarding foreign nationals in the United States and their rights to consular notification and access.5 See Government’s Sup*75plemental Appendix on Rehearing En Banc, Vol. II. Under the rubric of “Summary of Requirements Pertaining to Foreign Nationals,” the first directive states that: “1. When foreign nationals are arrested or detained, they must be advised of the right to have their consular officials notified.” Id. at 467. Later in this document there are “Suggested Statements to Arrested or Detained Foreign Nationals.” Id. at 469. For example: “In all cases, the foreign national must be told of the right of consular access.” Id. (emphasis in the original). This statement is repeated in like form on the next page. Id. at 472; see also id. at 477, 483, 484. The booklet also restate’s Mr. Layerly’s averment before the Senate to the effect that “[i]mplement-ing legislation is not necessary (and the Vienna Convention and bilateral agreements are thus “self executing”) because executive, law enforcement, and judicial authorities can implement these obligations through their existing powers.” Id. at 484 (emphasis supplied). Last but not least, the State Department thoughtfully provides a model “Consular Notification and Access Card” with the suggested statement to be made to the detained foreign national notifying him of his rights.
Not surprisingly, and I would add reassuringly to those of us that occasionally find ourselves outside the confines of our national borders,6 the State Department vis-a-vis U.S. citizens arrested or detained in foreign lands,7 takes a position similar to appellants in this case. In its Foreign Affairs Manual, the State Department indicates that “Article 36 of the Vienna Consular Convention provides that the host government must notify the arrestee without delay of the arrestee’s right to communicate with the American consul.” Id. at 378 (emphasis added). That said, and at the risk of stating what is obvious, I believe that the Government’s position regarding the restricted application of the Article 36 (of the Vienna Convention) and Article 35 (of the Bilateral Treaty) rights of foreign nationals in the United States not only establishes a repugnant double standard but, considering more practical applications, sets up our many citizens abroad for abuses that we will be hard-put to object to, considering the tenor and outcome of the present appeal. See Gregory Dean Grisvold, Strangers in a Strange Land: Assessing the Fate of Foreign Nationals Arrested in the United States by State and Local Authorities, 78 Minn. L.Rev. 771, 792-94 (1994) (hereinafter “Strangers in a Strange Land ”).
V. The Background to Article 35
The “legislative history” leading to the Bilateral Treaty with China is sparse. The Senate Report recommending its approval did state, however, that “[t]he bilateral consular convention will complement the multilateral Vienna Convention on Consular Relations of 1963 which is also in force between the two countries, but which treats certain important consular issues in only limited fashion.” Sen. Exec. Rep. No. 97-14, 97th Cong., 1st Sess. (1981), at 2. Furthermore, I am astounded by the majority’s contention that the Committee’s failure to specifically note the individual right of consular notification somehow negates the clear language of Article 35.8 As alluded to above, Article 35 of the Bilateral Treaty is even more emphatic and explicit than Article 36 of the Vienna Convention regarding the individual right of the na*76tional to notification of this entitlement by the detaining authority.
VI. The Interpretations of the Enforcement Authorities
Lastly we come upon the views of the enforcing authorities, that is, the ones that on a day to day basis are in the business of detaining and arresting persons, some of which are foreign nationals, and thus are charged with the practical implementation of Article 36 and Article 35. In this respect I should restate my view that once the pertinent treaty is ratified and thus incorporated into municipal law, the State Department should no longer be considered an “enforcing authority.” The principal federal governmental entities fitting this description are the Department of Justice and the Immigration and Naturalization Service,9 precisely the two “authorities” directly involved in appellants’ detention and arrest. Both have explicit regulations respecting the issue before us, see 28 C.F.R. § 50.5; 8 C.F.R. § 236.1, both of which regulations were ignored with apparent impunity, and now, with judicial blessing, will continue to be transgressed per saecula saeculorum.
The INS regulation specifically requires that “[e]very detained alien shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States.” 8 C.F.R. § 236.1(e) (emphasis supplied). The Department of Justice’s regulation also requires that “[i]n every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he does not wish such notification to be given.”10 28 C.F.R. § 50.5(1) (emphasis supplied). Notwithstanding these regulations and their conceded violation by the detaining authorities, it appears that the majority is willing to carve- out an exception, where aliens are concerned, to the well-established rule which demands of the Government compliance with its own regulations. See, e.g., Fort Stewart Schs. v. FLRA, 495 U.S. 641, 654, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990) (citing Vitarelli v. Seaton, 359 U.S. 535, 547, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), and Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957)).
VII. The Issue of Remedy
Finally, although my principal disagreement with the majority is over the Vienna Convention and the Bilateral Treaty’s creation of individual rights, I must also take issue with their treatment of the question of remedy.11 The majority holds that even if appellants have rights under Articles 36 and 35, they are not entitled to suppression of the wrongfully obtained evidence (or dismissal of the indictment) when the government violates those rights.12 I would first say that whenever a court of the United States takes such a position, there is. an inevitable erosion of the Judiciary as an institution. It is difficult to harmonize the principle of the rule of law with the granting of governmental immunity from the consequences of its violations of the Law.
*77The majority’s “no remedy” rationale is based entirely on the conclusory assertion that “Article 36 of the Vienna Convention, and the complementary Article 35 of the Bilateral Convention, do not create — explicitly or otherwise — fundamental rights on par with the rights to be free from unreasonable searches, the privileges against self-incrimination, or the right to counsel.” I disagree with that conclusion, and I believe that the issue at least deserves a more thorough examination than the cursory treatment afforded it by the majority.
As the majority notes, the exclusionary rule has been reserved for violations of fundamental rights such as those protected by the Fourth, Fifth, and Sixth Amendments. What the majority does not discuss, however, is what makes these rights “fundamental.” In my view, we consider these rights fundamental not merely because they appear (along with others) in the Constitution, but because they are essential to the fair and efficient administration of our justice system.
Underlying the Sixth Amendment right to counsel, for instance, is the recognition that the ordinary criminal defendant is unqualified and ill-prepared to navigate the intricacies of our legal system without assistance. As the Supreme Court stated eloquently in Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932):
Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
Quoted in Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Court has also recognized a right to counsel at the investigatory stage of criminal proceedings, based on the Fifth Amendment’s protection against compelled self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (noting that presence of counsel at interrogations can “mitigate dangers of untrustworthiness” and “help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial”).
In my view, the right to consular notification and access responds to the same basic concerns for fairness and efficient administration of justice as does the right to counsel. The appellants in this case, for example, were detained by the United States half a world away from their homes. They spoke no English. They had no relatives or friends in the United States or any of the places where they were detained by U.S. authorities before being brought here. None had ever been to the United States before, and we must assume that none had any understanding of the American legal system. They very likely did not know that they had a right not to incriminate themselves and a right to be represented by counsel, nor even that they had a right to trial by jury.13 In these unfamiliar circumstances, appellants were detained for nearly fifty days without counsel while they were shipped literally around the world, from Bermuda in the *78Atlantic, to Guantánamo in the Caribbean, to Wake Island and Hawaii in the Pacific, and-finally to Boston.
It seems to me, under these circumstances, that consular notification and access are absolutely essential to the fair administration of our criminal justice system. Just as a lawyer guides a criminal defendant through the unknown territory of the justice system, diplomatic officials are often the only familiar face for detained nationals, and the best stewards to help them through the ordeal of criminal prosecution. A consular official offers two things of utmost importance to detained nationals: (1) the familiar background, language, and culture of the alien’s homeland, and (2) a familiarity with the criminal system threatening to take away the alien’s liberty. Without these aids, I think that we presume too much to think that an alien can present his defense with even a minimum of effectiveness. The result is injury not only to the individual alien, but also to the equity and efficacy of our criminal justice system.
Because I think the rights to consular notification and access incorporated into domestic law by the Senate’s ratification of the Vienna Convention and the Bilateral Convention are fundamental to the fair and efficient administration of our justice system, I would hold that the exclusionary rule may be an appropriate remedy, at least where the defendant alien can demonstrate prejudice from the violation of his treaty rights.14
VIII. Conclusion
In summary: (1) The Vienna Convention and the Bilateral Treaty are self-executing treaties which clearly grant detained individuals rights that are enforceable by them in the courts of the United States; (2) Both the text and “legislative histories” of these treaties, as well as subsequent action of the U.S. authorities support these con-elusions; (3) Appellants have established that the authorities violated their rights under Articles 36 of the Vienna Convention and Article 35 of the Bilateral Treaty by failing to notify them of their right to consular assistance; (4) And the exclusion-, ary rule may be an appropriate remedy for violations of these rights.
The contrary decision of this Court is unfortunate not only because it is legally unsupportable, but also because it will harm the credibility of our Nation internationally. Furthermore, it is short-sighted because it will undoubtedly adversely affect the rights of our citizens abroad.
For the reasons stated, I dissent.
. The chronology of events as to appellants was as follows:
October 2: The M/V Xing Da was intercepted in international waters by the U.S. Coast Guard, and appellants were detained after boarding by Coast Guard personnel.
October 9: Appellants were offloaded in Bermuda and flown to the U.S. Naval Base in Guantánamo, Cuba, where they continued to be held in detention and were interrogated by officers of the U.S. Immigration and Naturalization Service.
October 19: Appellants were transferred to Wake Island and continued in detention.
November 5: A superseding indictment was returned which included appellants.
November 13: Appellants left Wake Island, still under detention.
November 14: Appellants and witnesses arrived in Hawaii.
November 15: Appellants were formally arrested.
November 16: Appellants and witnesses arrived in Boston.
November 18: 93 other passengers and crew were repatriated to China from Wake Island. A final superseding indictment was issued. Appellants had their initial appearance in Boston.
November 20: Appellants were assigned counsel.
At no point during this almost fifty-day ordeal were appellants notified of their right to consular notification and access.
. U.S. Const, art. VI, cl. 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
. There are, of course, many treaties entered into by the United States regarding which even after Senate ratification, and thus "incorporation” as municipal law, the subject matter is such that individuals lack standing to base claims or defenses in a court of law. See Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C.Cir.1988). But such is not the present case.
. I find the majority’s reliance on positions taken by the State Department during litigation to be unpersuasive, particularly as those positions are both self-serving and directly contrary to the Department’s nonlitigation position, as I describe above.
. This booklet indicates that the instructions therein are based on legal obligations set forth in the Vienna Convention and bilateral treaties which “are binding on federal,-state, and local government officials to the extent that are within such officials’ competence”, by virtue "Article VI, clause 2 of the Constitution of the United States.” Id. at 471.
. Millions of U.S. citizens travel abroad annually. In 1997 17,700,000 traveled to Mexico alone. The Time Almanac 2000, at 354. In that year 476,000 traveled to the People’s Republic of China. Id. It is estimated that more than 3,000,000 U.S. citizens live abroad.
. Over 2500 U.S. citizens are arrested abroad annually. See U.S. State Department, Bureau of Consular Affairs, Office of Overseas Citizens Services.
.The committee report devotes barely half a page to its "Section-by-Section Analysis” of the entire Bilateral Treaty — hardly a comprehensive enumeration of the treaty's provisions.
. Although INS is structured within the Department of Justice, it has its own regulation regarding the arrests of aliens. 28 C.F.R. § 50.5(b).
. Some treaties require notification to the consul irrespective of the individual’s wishes.
. I would emphasize that the ordinary course of proceedings is for the trial court to make a determination of remedy in the first instance. I think that the majority’s sidestepping of the ordinary process in this case to avoid the treaties' clear statement of individual rights is ill-advised, and I would remand the case to the district court to address the issue of remedy if prejudice is first found. . However, because the majority hangs its hat on the remedy issue, I will address it briefly.
.Although I interpret the majority opinion to reach only the narrow question of whether these two remedies — suppression and dismissal — are available, particularly in view of the position taken by the concurrence I cannot agree with the majority's conclusion.
. This lack of familiarity is exacerbated when the detained aliens, like appellants, come from countries with vastly different legal and political systems, some of which have little or no recognition of the individual rights that we deem fundamental. See Strangers in a Strange Land, supra.
. I would be more hesitant to sanction the much harsher remedy of dismissal, although I would not rule out such a remedy in extreme cases, such as willful or deceptive denial of consular access.