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.

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.

Abrogating Mexican murderer's rights puts Americans at risk abroad

Presidential candidate Barack Obama's perhaps premature victory lap overseas emphasizes the extent to which one of the major implications of the fall elections will be repairing America's image in the world after eight years of our government thumbing its nose at other nations.

By his second term, even President Bush began to shift policies hoping to repair our worldly image. Perhaps the most overt example was his advocacy on behalf of the consular notification rights of Jose Medellin, a Mexican national who raped and killed two teenage girls and is scheduled to be executed next week. The President maintains authorities should have notified Medellin of his right to contact the Mexican consulate. As described in an editorial from the Waco Tribune Herald ("Texas should honor treaties," July 29):

The Texas Court of Criminal Appeals defied Bush, the World Court and international opinion by refusing to hear the Medellin case.

Although Article VI of the Constitution says that “all treaties 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,” the U.S. Supreme Court ruled 6-3 that since Congress failed to provide a method to implement the treaty, Texas does not have to abide by the treaty.

Even if the effort in Congress succeeds in ensuring that the treaty is honored nationwide, it will not come before Medellin’s Aug. 5 execution date.

The case against Medellin is strong. Nothing will be lost if it is reconsidered in line with the treaty.

A lot could be lost, however, if other countries with questionable legal systems follow the Texas example by ignoring the treaty and refusing to allow Americans arrested in foreign countries from consulting with the American Consulate for legal assistance.

The Medellin case needs to be reconsidered.

Many folks think of Waco as a parochial place, but this opinion piece promotes a worldly wise perspective: Anyone who's traveled extensively in countries with "questionable legal systems" will appreciate the importance of consular notification rights. I've traveled a lot in Mexico and Turkey over the years, for example, and both are places where I'd be pretty darn scared to be arrested without access to the American consulate. (Take a look, for example, at recently revealed interrogation techniques used by Mexican police.)

Though I'll be surprised if it happens, I agree with the Tribune editorialist that the Board of Pardons and Parole and Gov. Perry should "quickly intervene." If Texans want our own rights to notify the US government upon arrest respected by foreign criminal courts, we simply must reciprocate. Governor Perry and the parole board should stay the execution at least until Congress has time to act. There's simply no need to risk giving other countries an excuse to disdain America or her citizens' rights.

UPDATE: Says the Dallas News in its own editorial, "For the good of the country, we join Attorney General Michael Mukasey and Secretary of State Condoleezza Rice in urging [Governor Perry] to grant a stay of execution."

More Wretched Opinions: CCA spites Bush, US Supreme Court on Mexican consular notification

The media and legal blogosphere are abuzz with news that the Texas Court of Criminal Appeals defied President Bush, the US Supreme Court (no surprise, at this point), and the World Court with their decision in the Medellin case over whether Texas must notify the Mexican consulate when Mexican nationals are arrested.

From Howard Bashman at How Appealing, leave it to the CCA to come out to the right of President Bush, much less the US Supreme Court, regarding the rights of Mexican nationals in death penalty cases. SCOTUSBlog and Opinio Juris, have more. Here's the New York Times coverage, the SA Express-News, and the Houston Chronicle's. Find links to all the opinions over at Howard's shop. (UPDATE: Wretched of the Earth adds his two cents with another CCA Update entitled, "Texas Gives Middle Finger to the World.")

President Bush has sunk far when an all-Republican Texas Court of Criminal Appeals rebuffs his overt demands. Granted, he was taking up for the rights of a Mexican and a murderer, which as South Texas Chisme notes was unfamiliar ground for the President. So the politics of the case are highly charged in all directions.

Meanwhile, the Wretched of the Earth continues his great weekly series analyzing cases from the Court of Criminal Appeals hand down list. This weeks he looks at a case where the CCA upholds sentence stacking and offers fragmented views on the right to remain silent and what constitutes ineffective assistance of counsel.

The issues raised in Ex Parte Donald Heidelberg, which Wretched discussed, were particularly interesting: I didn't know Texas constitutional law provides stronger protections to defendants than the Fifth Amendment to the US Constitution on whether defendants' silence may be used against them by prosecutors in court. Defense counsel who fail to raise objections on state constitutional instead of federal grounds, the CCA found, could be considered ineffective under the ruling.

Great job, Wretched, casting more light on a court that's nearly constantly embarassing the state of Texas on the national stage.

UPDATE: Jason, a Houston cop at Cigars, Donuts and Coffee, liked the Medellin decision. Beyond the Border blog wonders why the Mexican government isn't more concerned. Dorf on Law looks at a possible upside for internationalists. CrimProf blog wonders if the CCA thinks its above the law?

SCOTUS to review foreigners' rights in Texas death row case

If, like me, you never quite understood what was happening when President Bush pulled the U.S. out from under the review of the International Court of Justice under the Vienna Convention (other than perceiving that Bush was acting on a generalized right wing belief that international institutions are bad, as he did appointing John Bolton UN ambassador), you should check out this SCOTUS blog entry about the case Medellin v. Dretke,involving a Mexican national sentenced to death in Texas. Oral arguments will be heard Monday. SCOTUS blog gives a clear, brief explication of a complex matter that explains a lot about how this particular case motivated what Bush did and why. Good stuff. Via Jurispundit.

See here for more on what's going on regarding the Vienna Convention in Texas.

Texas should strengthen Vienna protections

Despite President Bush's recent pullout from the International Criminal Court, American state courts remain fully bound by the Vienna Convention, the State Department said in a recent explanatory statement. I'm glad somebody's out there explaining this, because I didn't fully understand what happened.

Bottom line: foreign nationals can still request notification of their country's consular officials when they're accused of a crime.

Though Alberto Gonzalez has (wrongfully) disputed the point, the State Department says all states including Texas are obligated to notify foreign governments whenever their citizens are arrested. Foreign nationals have the right to request a meeting with consular officials if they're arrested. In some instances, the state is required to notify the foreign government. In all events, consular officials must be allowed to meet with their detained citizens. (For detailed information on the notice process, see here.)

Texas state Sen. Rodney Ellis has a great bill up Tuesday (SB 603) in the Senate Criminal Justice Committee that would strengthen Vienna Convention requirements in Texas to require magistrates to notify consular officials if there is reason to believe the defendant is either from Canada or Mexico. The bill also requires penal institutions to facilitate inmates' communication with the consulate.

I've got a bit of a personal dog in this fight: I've traveled quite a bit in Mexico with naught but broken Español turista, and if I were busted by the local policia down there in some cockamamy snafu, I'd be trying to fumble through the justice system with lingo better suited for finding hotels, beaches, museums and restaurants. At that unhappy moment, I'd sure appreciate the judge making sure the US consulate was notified regardless, in case I was unable to make myself understood independently. If we want American citizens to be treated that way, it sure seems smart to return the favor. I'd hate to have a Mexican judge thinking in the back of his head, "Well, those Texan gringos didn't give my cousin any breaks, so screw you."

I'm glad Bush didn't completely roll back these important protections, and I hope the Senate will enhance them with Sen. Ellis' bill.