Medellin postscript

By a 5-4 vote, the Supreme Court allowed Jose Medellin's execution to move forward last night despite opposition from the World Court and the Bush administration.

I hope Medellin's death will bring the victims' family closure - whatever that means. But since his execution cannot bring back their lost loved ones, I doubt seriously those painful memories are "closed" for the victims' family and friends any more this morning than at this time yesterday. Such indescribable loss can never be cured IMO via mere retribution, however satisfying the idea may seem to contemplate. The promise of "closure" to me is one of the cruelest aspects of the modern death penalty advocacy - executions may accomplish many things but "closure" for victim families is rarely one of them. Some tragedies just haunt you forever.

Given that the only possible enforcement for Vienna violations would be action by the United Nations Security Council, in which the United States has a veto, it's hard to predict what will happen going forward. The legal debate over Medellin may end here for now, waiting to be renewed the first time some American is held incommunicado overseas and our government complains their Vienna rights were violated.

You can almost hear future officials from some corrupt government telling the United States "I'm sorry Mr. Ambassador ... local authorities made the decision to violate your citizens' rights, so even though we have a treaty saying she could speak to the consulate, they didn't tell her she could do so and we have to abide by their decision. Our hands are tied." That's essentially what last night's SCOTUS decision said to the rest of the world. "We may enter treaties, but we'll pick and choose when we will abide by them.

In what strikes me as an oddity, the SCOTUS majority offered an unsigned per curiam opinion while we're treated to four different dissents (see the opinions here). Though we obviously know which five approved of the opinion, apparently nobody wanted their name on this one.

The court had held 6-3 earlier this year that Texas was not bound by the Vienna Convention - a 45 year old treaty guaranteeing foreign nationals arrested will be told of their right to notify their country's consular authorities - because Congress had not passed enabling legislation. Justice John Paul Stevens sided with the majority in the earlier ruling but switched to a dissent because he felt Texas has not lived up to its responsibility. This paragraph of Stevens' summed up my own views on the question:

As I explained in my separate opinion in March, the cost to Texas of complying with the ICJ judgment “would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced” this petitioner. 552 U. S., at ___ (slip op., at 5) (STEVENS, J., concurring in judgment). “On the other hand, the costs of refusing to respect the ICJ’s judgment are significant. The entire Court and the President agree that breach will jeopardize the United States’ ‘plainly compelling’ interests in ‘ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law.’ ”

The most interesting and extensive dissent came from Justice Breyer, who was also part of the earlier minority on Medellin:

In my view, several factors counsel in favor of delay. First, since this Court handed down Medellín, Mexico has returned to the ICJ requesting this Nation’s compliance with its international obligations; and the ICJ has asked that the United States “take all measures necessary to ensure that [the Mexican nationals] are not executed” unless and until they “receive review and reconsideration consistent” with the ICJ’s earlier Avena decision. See Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2008 I. C. J. No. 139, ¶80 (Order of July 16).

Second, legislation has been introduced in Congress seeking to provide the legislative approval necessary to transform our international legal obligations into binding domestic law. See Avena Case Implementation Act of 2008, H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to committee, July 14, 2008).

Third, prior to Medellín, Congress may not have understood the legal need for further legislation of this kind. That fact, along with the approaching election, means that more than a few days or weeks are likely necessary for Congress to determine whether to enact the proposed legislation.

Fourth, to permit this execution to proceed forthwith places the United States irremediably in violation of international law and breaks our treaty promises.

Fifth, the President of the United States has emphasized the importance of carrying out our treaty-based obligations in this case; this fact, along with the President’s responsibility for foreign affairs, makes the Executive’s views of the matter pertinent.

Sixth, different Members of this Court seem to have very different views of what this case is about. In my view, the issue in this suit—what the majority describe as the “beginning premise”—is not whether a confession was unlawfully obtained from petitioner. Cf. ante, at . Rather, the question before us is whether the United States will carry out its international legal obligation to enforce the decision of the ICJ. That decision requires a further hearing to determine whether a conceded violation of the Vienna Convention (Texas’ failure to inform petitioner of his rights under the Vienna Convention) was or was not harmless. Nor do I believe the majority is correct insofar as it implies that Congress has had four years to consider the matter. See ibid. (“Congress has not progressed beyond the bare introduction of a bill in the four years since the ICJ ruling and the four months since our ruling in Medellín v. Texas”). To the contrary, until this Court's decision in Medellín a few months ago, a member of Congress might reasonably have believed there was no need for legislation because the relevant treaty provisions were self-executing. It is not realistic to believe Congress could act to provide the necessary legislative approval in
only a few weeks’ time.

Breyer's final point - that people disagree what the case is really about - strikes me as a fundamentally true statement not just about the court but the public debate surrounding the whole case. Like Breyer, I was startled to see the majority's reference to challenging the confession as the only valid reason to allow review of the consular notification requirement. That's not correct at all from my perspective, and clearly Breyer's - the reason to hold such a hearing is because the United States agreed to abide by the treaty, not because of any specific aspect of Medellin's case in particular.

This sets an odd precedent going forward - that states are not bound by federal treaties without specific enabling legislation. I wonder how many other treaties this might implicate where states are now free to violate agreements the President entered into on the nation's behalf? What does it mean when the federal government undertakes international treaty obligations that states intentionally violate? Given the Supemacy Clause, it's hard for me to understand how a single state can initiate such a dispute with foreign nations in violation of treaties that the US Consitution makes "the supreme Law of the land."

Finally, Julian Ku over at Opinio Juri identified an oddity in Texas' final pleading to SCOTUS in which the Lone Star State promises to give future defendants hearings as mandated by the ICJ, but out of "comity" not because of any legal obligation. Ku notes:

it is not clear from the brief whether Texas is also undertaking to give the type of “review and reconsideration” required by the ICJ. I have to assume that there is some difference between what Texas thinks “review and reconsideration” means via the Vienna Convention, and what the ICJ thinks, since it is executing Medellin with the claim that he got all the review and reconsideration required. But plainly, the ICJ does not believe Medellin’s habeas hearing satisfies the “review and reconsideration” requirement. And since the ICJ is the institution that basically invented this requirement, why shouldn’t their views on what “review and reconsideration” means prevails?

I agree with Ku that when Texas promised "review and reconsideration," they weren't remotely promising to comply with the ICJ ruling but with their own Texas version of cursory review to be pulled out of the black-robed behinds of the Court of Criminal Appeals at some future date. IMO we shouldn't read too much into this promise.

This was a bizarre and complex case: I can't think of a single other instance where a state's actions violated a US treaty and it was allowed to stand by the federal courts at the end of the day. Yesterday's execution and the subsequent treaty violation it spawned will be the subject of intense debate and international controversy for many years, I'm sure, plus one suspects it may also show up as the topic of more than a few exam questions about international law.

See more coverage compiled at the Stand Down blog.