Monday, August 04, 2008

Jose Medellin and the rule of law

The question of whether to execute convicted killer and Mexican national Jose Medellin has generated many false arguments in recent weeks regarding the rule of law, frequently IMO turning the idea on its head.

Barring an unlikely last-minute intervention by the Board of Pardons and Parole and the Governor, Texas will execute Medellin this evening for the double murder of two Houston teenagers. The Lone Star State has executed people for far lesser crimes - even people convicted under the "law of parties" who weren't directly responsible - so if the only issue were whether Medellin deserves to die, I doubt I'd waste space on Grits about him.

However, Medellin's case implicates much larger issues regarding America's place in the world and Americans' safety when traveling abroad that I do care a lot about, particularly since I love to travel.

Why are those crowing about the rule of law unconcerned when America violates our treaties and soils the nation's reputation and good word? In a ridiculous column published in the Houston Chronicle August 1, Dallas attorney Cameron Kinvig offers up one of the more absurdist examples of (what's passing for) conservative commentary on the subject:
those espousing the "internationalist" perspective seem all too willing to thwart justice, destroy sovereign rights and otherwise thumb their noses at the proper (and unabashedly domestic) rule of law, so that the United States can somehow make friends in the international legal community. This movement is counter to the constitutional principles upon which this country was founded, and must be stopped. Indeed, to place the laws of the state of Texas up for review by any and every international body that wants to opine certainly would be contrary to the system of independent federalism governing our legislative and judicial systems.

Instead, and in the words of Randy Ertman, father of Jennifer Ertman: "The world court don't mean diddly. This business belongs in the state of Texas ... the rest of them can go to hell."

For starters, if Kinvig or perhaps his spouse or one of his children were ever arrested in, say, Central America or Southeast Asia, I wonder if he would be satisified when, upon asking to speak with the American consulate, he were told the American government "can go to hell"? If his own rights were at stake, or his family's, would he be so cavalier about the importance of nations abiding by their treaties? I sincerely doubt it. It's easy to act like a jerk when somebody else's ox is getting gored; less so when it's you and yours.

Kinvig's caricatured depiction of a so-called "internationalist" perspective similarly begs credulity. How are internationalists the ones "thumbing their noses" at the rule of law? Did the United States not enter into the Vienna Convention willingly many years before Medellin was even born? Doesn't the US Constitution obligate us to abide by treaties freely entered into and ratified like this one?

The US Supreme Court held that the Vienna accords did not give Medellin an individual right, but instead created an obligation for Congress to establish that right under federal law, something that had never been deemed necessary since the treaty was enacted in 1963. However that doesn't mean that Medellin needn't have been notified of his consular rights, just that the United States failed to comply with its treaty obligations by not ensuring those rights.

In other words, to say Medellin needn't have been notified, one must embrace the idea that the United States can and should knowingly violate an existing treaty. That's just wrong. The federal government is still obligated by the rule of law to protect Medellin's Vienna rights, which is why the Bush Administration including Secretary of State Condoleeza Rice are calling on Texas to stay the execution until Congress can fulfill its SCOTUS-articulated duty. This isn't really about "making friends," but whether America's word can be trusted by other nations.

The Supreme Court ruled that states aren't bound by the treaty and that gave the state of Texas a narrow time window in which it could legally carry out Medellin's execution under US law. But Texans are also Americans. The United States of America is bound by Vienna requirements and our nation's failure to fulfill them still violates US international obligations, regardless of domestic legalities. Medellin's execution will amount to a breach of treaty, even if the feds can't force Texas (for the moment) to comply.

If the United States doesn't intend to abide by treaties, we should not enter into them. But when we do, those obligations constitute the "rule of law" just as much as other types of statutes. Those who say so-called "internationalists" would "thumb their noses" at the rule of law need to find a mirror. Somehow the phrase "internationalist" has morphed into meaning, "people who think the United States should not violate longstanding treaties."

Typically, those baying most loudly for an immediate death sentence portray US treaty obligations as mere flights of fancy, as Kinvig did when he referred to the:
banal musings of an international court seeking to impose its will, and arguably its moral compass, on nonconsenting sovereign governments
How exactly is the United States a "nonconsenting sovereign government" when we willingly signed onto the treaty? The International Criminal Court wasn't just "musing" on the topic - they were using mechanisms our government agreed to to tell the United States to do what it said it would do 45 years ago in Vienna. The feds agreed; Texas said "F-You."

I would prefer that consular notification questions had come up regarding a case with a less hot-button underlying crime, because the issues would be the same if Medellin were convicted of shoplifting. But tonight's execution date raises the stakes and simultaneously makes the violation of Medellin's Vienna rights an irreversible act. The whole episode reminds me of a remark from H.L. Mencken that popped up recently on my "Quote of the Day" feed:

“The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”

- H. L. Mencken, 1880 - 1956

That's exactly the dilemma here. Those who think rights for everyone shouldn't be abrogated find themselves reduced - in this case as in so many others - to advocating for the rights of a scoundrel, which description surely fits Jose Medellin.


Anonymous said...

The "rule of law", of course, for most people jumping up and down about this execution (and by the way, no one will care in a week), is cover for the fact that they just don't want to see the guy executed. It's painfully obvious.

As for the Vienna Convention and what we agreed to, I'd say that we did not agree to some court going way beyond the treaty language to (a) create individually enforceable rights and (b) undo procedural rules of the courts in a particular country. On top of that, no other country party to this treaty has created judicially-enforceable rights with respect to violations of the treaty.

The US is not a bad actor here. Texas supplied this clown with a free attorney (something which doesn't happen in Mexico) and has fed and clothed him since his arrest (something else which doesn't always happen in Mexican prisons). He grew up here, and had he kept his nose clean, he likely could have been a citizen (something, once again, not likely in Mexico). He could have owned property (once again, something which is very difficult for foreigners to do in Mexico). In other words, America treated this guy better than Mexico would have had he done the same thing in Mexico, and the US also gave him what it would have given a US citizen accused of a horrible crime. That reality needs to be recognized, and it's not.

So yes, I don't really have a huge problem telling the World Court to f&^* off.

Anonymous said...

I wonder if he would be satisified when, upon asking to speak with the American consulate, he were told the American government "can go to hell"?

You are comparing apples to helicopters. Texas didn't prevent Medellin from contacting the Mexican consulate. That rabid man-dog never even asked to talk the consulate. He didn't even raise the issue until he'd been on death row for 5 years.

[...] the issues would be the same if Medellin were convicted of shoplifting

Bullshirt. There are two types of people opposed to this execution:
1. People opposed to the death penalty.
2. People who deserve to be executed.

Take away those two groups and there is nobody championing this treaty. You are lying to yourself if you think any of this would happen over a shoplifting conviction.

Gritsforbreakfast said...

To 10:41 - If you want to go to an anti-death penalty blog and make that complaint, go ahead. You've simply mischaracterized my argument for your own ends (having no credible response, one presumes, to rebut it).

I hope if someone you love is ever arrested in a foreign country, you won't mind being told to "f&^* off." Actually, I take that back; I hope you DO mind if and when that happens, and at that moment you realize what a foolish and parochial stance you're taking now.

It's easy for anonymous cowards calling for others' death in blog comments to make bold statements they'd never back up in person. Happens every day. Even if you say now you're willing to take that risk regarding your own kin when they travel, I'll guarantee if your child were ever arrested and didn't get every consideration you'd be howling like a scalded cat, so confident you appear in your philosophy of American exceptionalism. I guess, though, you'd be willing to take "f&^* off" for an answer? Really? Let's hope you never have to find out, and for those who are arrested let's hope other nations don't consider the "rule of law" as much a joke as you do.

To the second commenter, take away those two groups an I'M still championing the treaty; I can't speak for anyone else but that alone proves you're wrong.

As for whether this would happen over a shoplifting conviction, you just don't understand how the law works. Consular notification is required for ALL crimes, not just capital ones. The reason Medellin rose to international prominence was the capital sentence, no doubt, but the implications of the case burrow deep down into every type of criminal prosecution. If you don't see that then you are simply ignorant about how the treaty works, or how it's supposed to.

Unknown said...

Just read Jose Medellin own words at his web site--- he says his loyalty is to Mexico that he is Mexican 100%. As he brags of his love for Mexico and says " The crime I am charged with matters not at this time."

To bad he didn't do his torture, rapeing, and murdering of two young girls in Mexico they love him so and he them. As to the crime he is wrong it does matter he will find out tomorrow lol

Anonymous said...

Come off it Grits--you'll notice I said "most" when I was talking about people opposing this execution.

My main point, of course, is that the ICJ;s decision was bullshit for the reasons I mentioned. And the piety with which people chant "rule of law" is just a little much to take.

And yes, I'd be screaming like a scalded cat if the procedures were fundamentally unfair. If they were not, then I wouldn't.

Anonymous said...

Grits, your hyperventilization over the Medellin case has become quite annoying. The courts of this country have ruled (time and time again) and yet you somehow feel that the rule of law is being violated.

You seem unable to come to grips with the facts: although technically a mexican citizen, in realilty and for all intent and purposes he was a citizen of the U.S. having lived here since he was 3 for 15 years and spoke fluent English--your loneley vacationing U.S. citizen suddenly finding himself in a foreign jail analogy is unconvincing and unpersuasive to say the least.

He told NOONE that he was a mexican citizen until 4 years after he was convicted--noone, no lawyer, no judge, no peace officer. He probably didn't even know he wasn't a U.S. citizen. And what if he had received consular notification--what would that have gotten him? How would that have made the outcome of the case any different? I have yet to see anyone articulate how that harmed his case or would have changed the outcome of the trial--a well-established and necessary prerequisite under Texas and U.S. law.

The entire time he was in jail awaiting trial, noone: not his family, his lawyer, nor himself even bothered to pick up the phone and call the consolate. It was obviously not a burning issue on anyone's mind.

You are not concerned with the rule of law or justice in this case. You have just singled out one "rule" and ignored the others as well as the procedural facts. You just don't like the outcome and are looking for something to hang your hat on. Dude, you picked the wrong case to make a stand about.

Anonymous said...

As for whether this would happen over a shoplifting conviction, you just don't understand how the law works.

Who understands how the law works, A or B?
A) GritsForBreakfast
B) Texas Court of Criminal Appeals and the Supreme Court of the United States.

Apparently Grits it is YOU that doesn't understand how the law works.

Gritsforbreakfast said...

To 11:47 - this is the case in which the United States (really the Texas courts) defied the treaty over; they chose the terrain of the debate, not me. As I said in the post, I wish the debate were over a different type of case. It's not. The precedent has been and will be set here. And I'd say the "hyperventilization" comes from those anonymously calling for blood. I'm worried about what happens to me and mine when they travel.

Though ray is a bit too dim to understand it, Medellin's right that "The crime I am charged with matters not at this time."

You ask how would the case outcome have been different, but the point isn't this case but the next one, and the next.

You may not like how the ICJ ruled but that doesn't matter. The question has become bigger than that - it's whether the United States will openly defy its treaty obligations and the international institutions we agreed to have interpret them? Are we honest? Is our word true? Will we abide by the law or hold ourselves above it? That's what's at stake now, and it's bigger than Jose Medellin.

To 11:23 - You didn't say "most." Here's what you wrote:

"There are two types of people opposed to this execution:
1. People opposed to the death penalty.
2. People who deserve to be executed.
Take away those two groups and there is nobody championing this treaty."

Of course, President Bush presided over 152 execution's as Texas Governor, but HE'S "championing this treaty," as are many people who are otherwise pro-death penalty.

Stop smearing the motives of those with whom disagree with you because you're incapable (or unwilling) to challenge them intellectually.

Certainty is not a reason-based conclusion, it's an emotion, so mere stridency proves nothing except that you've ginned yourself up on the topic beyond the limits of reason.

Gritsforbreakfast said...

11:59 - You're really missing the whole discussion, aren't you? Is it intentional?

Are you saying SCOTUS or the Texas Court of Criminal Appeals would somehow apply the Vienna Convention only to murders and not lesser crimes? That's dumb.

Otherwise, SCOTUS said Texas' actions in the case conflicted with our treaty obligations but the President couldn't do anything about it because Congress had not passed enabling legislation. That's why Medellin's current petition to SCOTUS asks them to delay the execution only long enough for Congress to take action. Nothing I've written here contradicts the CCA or SCOTUS, I'm just reacting to their rulings.

Anonymous said...

It's not entirely clear that Congress would be able to override the Supreme Court judgment--see Plaut v. Spendthrift Farms.

Gritsforbreakfast said...

12:48, Congress isn't aiming to "override the Supreme Court judgment."

SCOTUS said the Vienna treaty didn't apply because Congress had not created an enabling law, so they're creating one. That's in direct accordance with SCOTUS, not "overriding" them.

Anonymous said...

Grits, Texas has a judgment that holds that it can execute Medellin with no further review of Vienna issues. The statute would undo that. That raises separation of powers issues--see Plaut v. Spendthrift Farms.

Perhaps courts would "get there", but it's not a slam dunk by any stretch. Ask one of your lawyer buddies.

Anonymous said...

Are we honest? Is our word true? Will we abide by the law or hold ourselves above it?

After 8 years of this administration do you even have to ask this question?

"There are two types of people opposed to this execution:
1. People opposed to the death penalty.
2. People who deserve to be executed.
Take away those two groups and there is nobody championing this treaty."

Of course, President Bush presided over 152 execution's as Texas Governor, but HE'S "championing this treaty," as are many people who are otherwise pro-death penalty.

Some people might say that Bush is in one of those two groups.

Ian said...

The "rule of law" is extremely important, especially in Latin America as many presidents feel that they can cross it. In many cases like that of President Hugo Chavez, people are sent to jail and kept there without due process.
President Hugo Chavez is responsible for countless human rights violations. He is currently holding many political prisoners, all of whom were imprisoned by the Venezuelan government on trumped-up charges in cases with manifest due process violations.
If you are interested in this issue you should check out


Anonymous said...

In many cases like that of President Hugo Chavez, people are sent to jail and kept there without due process.

Ha ha! Don't be a neocon tool Ian, we do that to people here in the USA just as well.... we've got a whole mess of them down in Gitmo and we didnt even both charging them with any crime.

Forget the spliter in Venezuela's eye and worry about the mote in ours.

Anonymous said...

The problem in this case that the World Court is trying for a remedy through the wrong process. There was no error in the Texas trial. Thus, the World Court has no business trying to order the Texas courts around.

If there is to be a remedy, Congress needs to make some kind of federal process available. Of course, Judge Cochran does a good job showing that Medellin would lose under any sensible process. In any case, Congress has shown no intention of creating such a federal process available.

Anonymous said...

The point that concerns me is not that this guy is facing death for a crime that deserves death. He apparently does.

The point that concerns me is whether there is any legitimate question about whether a person was entitled to yet was denied rights under international law principles adopted by this country. Unfortunately, this is simply not clear from the public discourse regarding this case.

Yes, it's objectively ridiculous to think that a person who has lived here since he was three years old would think of himself as a foreign national - I would guess (but do not know) he did not and does not. Yes, it's a ploy by death penalty opponents to stop an execution, not a suggestion that he was not guilty as charged. No one has suggested he is not guilty as charged.

But -- selfish me -- if I travel abroad, I want whatever country I am in to honor whatever rights that country and the U.S. have agreed I should have. Even if the folks who want to violate those agreed on rights are the foreign country's local, not national, governmental authorities. And even if the folks in that other country think my assertion of those rights is ridiculous.

Anonymous said...

What is ridiculous is to seek to overturn a conviction and sentence when the defendant waited for four years to tell anyone that he was a foreign national.

Does the World Court somehow expect our police officers to be clairvoyant?

Also, what if a foreign national was arrested in a sanctuary city where the police do not inquire regarding immigration status, how would they be able to ascertain whether consular notification was even needed?

Anonymous said...

And that's another argument against sanctuary cities, in addition to the disrespect of the rule of law that it engenders. If no one asks about citizenship status, people who are supposed to have international law rights -- arrested persons of foreign nationality accessing their consulate, for example -- will be lumped in with everyone else when international law argues they should not be.

Anonymous said...

Yeah, but here's the thing 8:43. I agree with you that I would want to be treated fairly abroad. But if I were to get arrested anywhere outside of the US, you can darn well bet I'm going to be screaming "I'm an American. I'm from the US. I am not from this country," as I think any reasonable person would do, IF, in fact, he were on foreign soil. Medellin didn't do any of that. Why not? Because based upon his background, he really wasn't on foreign soil at all.

Yes, there may well be a poster child on death row or in prison who illustrates US abuses of the Vienna Convention and consular notification. However, Medellin is not that person.

Anonymous said...

Criminals shouldn't have it both ways. Houston is a sanctuary city,
which means cops can't ask the arrested about his status as regards immigration and then when convicted he screems about the consulate. The only sad thing is that the girls' relatives have had to wait 15 years for justice. This guy should have been executed in 1993.

Anonymous said...

Everyone seems to be making this into a want to overturn convictions due the fact that an individual is not from the US. I think Grits is making a far deeper point than some of you will not dive into.

The point being that Texas is but on insignificant speck in the whole dust pile. Like it or not, which I am sure most of the centralist Texans do not, the world that we lived in the 1800's is no longer around. This is the 21st century. Ramifications will come to those that had nothing to do with this decision, nor the insignificant speck.

As this is a world economy, and Americans are traveling the world on Business, leisure, or a mixture there are going to be times when we will see that Uncle Sam is NOT the end all legal authority. When this happens, and you do scream for the Consulor, please don't be surprised when that country gives you no certain terms as to the NO answer.

Currently we have prisoners in Gitmo that are not being held according to treaty. They are not afforded rights that the US once championed. We will see in the future when the countries of these citizens in Gitmo will also overlook the 'rule of law'.

Our Problem, the problem of the people of America, is a belief that there is us then the rest of the world which should be subservient to us. The days of USA USA USA are over folks, the world has far eclipsed us, and view us as the scoundrel.

If the US doesn't honor treaties that we ourselves set forth in some manner, they will come back to bite us in the end, and our citizens will be made to suffer.

T King said...

10:41, 8:28 and 10:55 -- US treaties are are "law of the land":

US Constitution, Article VI, section 2 --

"This Constitution...and all the Treaties made...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."

The question is one of reciprocity between nations and national honor -- does the US keep its word with other countries?

The principle involved, as it relates to our form of government,ought to trump popular outrage at the appellant. If the states can ignore treaties willy-nilly, they do so to the detriment of the US and imperil the country's honor.

T King said...

If this means the execution of Medellin is postponed or that he is retried, the final result under the circumstances disclosed is unlikely to be any different.

Is putting off the execution of Medellin for awhile really too high a price to pay to protect the bona fides of the USA and uphold the US Constitution?

Anonymous said...

Many of you want this murderer released hoping that US citizens can go free after committing crimes in some Islamic countries or just want to feel good or want good report in European media. The rest of us want real justice and not stupid verdicts handed down by judges (who wear lace dresses) in World Court, who never had a teenage daughter savagely murdered. If you would like know what this demon did, please follow this link.

Anonymous said...

In reply to t-king I hate to say it but the word of honour of the United States has very little weight over here. The UK ratified a bilateral exradition treaty which made the procedure for extradition simpiler and removed the need to present evidence to support the extradition this was origanally intended for terroist acts, however it has only been used so far in "white collar" crimes. At the same time the US Senate had not ratified the treaty as they feared that it would be used to extradite persons wanted for commiting terrorist offences from the US to the UK!

Anonymous said...

I would be ok with allowing Jose Medellin to live if, instead of executing him, they remove all his skin with an electric belt sander... and then dunk him in a slurry of salt and rubbing alcohol.

Then, when his skin grows back, do it again. Continue this process until he kills himself.

Anonymous said...

I love how everyone is all about the "rule of law" - we wouldn't be in this mess if people were following the "rule of law". Like when Jose Medellian's family came here illegally when he was 3. Or when the city of Houston failed to inquire if he was an American citizen? Of course not because Houston is a sanctuary city and they never ask even when you shoot a police officer. He lived in this country 15 years and then 4 years after his conviction he wants to be a Mexican citizen? Come on, this is just one of the reasons we need to fix illegal immigration because it keeps happening over and over again while we fail to "follow the rule of law" I say B.S. kill the scumbag.

Anonymous said...

Medellin got the big jab. Ha Ha ha ha ha ha ha ha ha.

Monk said...

If any of you read what these 6 guys did to these two girls, there would be way more comments about torturing the guy than just putting him to death.

Insane what they did to those two girls. There is no way I could have let anyone live with what they did. Go read it and tell me if you have any sympathy for some guy trying to claim Mexican citizenship after the fact.

Anonymous said...

Texas and China. Two five letter words. I think their related. China also believes in the rule of law. Whatever law they feel like making. To Hell with everybody else. Texas on one side China on the other. What a combination.

Anonymous said...

How can intelligent people be so stupid sometimes?

This was never about saving dude, it was about honoring our promises. Now that we have not done that, we AGAIN, are looked upon as villains. When this goes down in Saudi, or Mexico, or some other insignificant speck of a country, which among you will be crying out to kill the accused before he speaks to the Embassy? When some ignorant kid that believes all of the garbage mom and pop have told him about USA #1 breaks the law somewhere else, who among you will champion the rights of the foreign land to execute?

No, you will all be seething about rights, treaties, promises.

There is a reason that most countries will not ship accused to the US if they are wanted for Capitol offenses. They know that once here, our word is garbage.

T King said...

paul-uk: Our word may not mean much to you now, but it'll never mean anything if we don't start keeping it.

That our honorable ancestors welshed once or twice does not bind our hands, still less does it authorize us to welsh, as some seem to think in this thread.

I know it is traditional for the law to humanize communal vengeance, but that is not the aim of law. The aim of law is justice.

Anonymous said...

The US Supreme Court held that the Vienna accords did not give Medellin an individual right, but instead created an obligation for Congress to establish that right under federal law, something that had never been deemed necessary since the treaty was enacted in 1963.

This is sloppy legal reasoning. The Vienna Accords were not self-executing; the ratification by Congress did not in and of itself did not create federal law enforcable on the states. The Senate knew this when they ratified the agreements, and yet they did not take the further step of passing law. It was not that they did not deem it necessary; this lightweight argument presupposes that they expected the accords to be self-executing, and thus it unnecessary to pass the legislation making the precepts of the accords enforcable.

Congress CHOSE not to pass executable law, which is why the Supreme Court refused to grant Medellin relief. The Bush Administration argued that they could do this through executive order, the Supreme Court disagreed. Medellin's lawyers then argued that the Supreme Court should in effect create such law by ordering Texas to comply with the accords. Again, the Supreme Court disagreed and argued that only Congress can create the law; the courts can only interpret, the President can only enforce.

To argue that the accords were prima facie enforcable on the state courts is to be either ignorant or willfully obtuse in order to muddy the waters on behalf of Medellin and anti-capital punishment zealots everywhere.

Gritsforbreakfast said...

Many international law authorities agreed they were self executing but SCOTUS decided to make new law, as is their wont; you're wrong to say those who considered the Vienna Conventions self executing were taking some novel position.

This has nothing to do with being for or against the death penalty.