November 16, 2006

"The president has exceeded his constitutional authority by intruding into the independent powers of the judiciary."

The Texas Court of Criminal Appeals brushes off President Bush and the International Court of Justice in The Hague.
In 2004, the International Court of Justice in The Hague ruled that 51 Mexicans on death row in the United States were entitled to “review and reconsideration” of their claims that their rights under the Vienna Convention on Consular Relations had been violated.

The convention requires that arrested foreigners be told of their right to speak with consular officials. If asked, local officials must contact the appropriate consulate. Both actions, the convention says, must be taken “without delay.”

The international court added that American courts performing the required review and reconsideration could not rely on a doctrine known as procedural default to decline to hear arguments not raised at trial. That is at odds with recent death penalty jurisprudence in the United States and with state and federal laws that limit what kinds of arguments may be made if they are not raised early on.

When the question of whether the international tribunal’s ruling must be followed reached the United States Supreme Court last year, President Bush issued a memorandum to Attorney General Alberto R. Gonzales directing state courts to abide by the decision of the tribunal.


Sloanasaurus said...

Very interesting. Federalism - sometimes it's good for you, sometimes it's not.

The wold court ruling is just an exercise in anti-american sentiment. It gives them something to do.

Instead, why not rely on an appeal by the President of Mexico to President Bush and or the Governor of Texas to review the cases.

Jeff said...

Texas is bigger than France... and the Netherlands!

David said...

Once again the United Nations is attempting to abolish the death penalty in the U.S. and remove any sovereignty this nation has to protect it's borders.

These murderers come to the U.S. illegally and then demand the right to have the country they escaped from provide a get out of jail free card to avoid justice.

Arguments are not raised at trial with an eye towards using them as a trump card for later appeal. So much for procedural default. Bush failed his constituency by bowing to the dictums of the Vienna Convention to pander to the Latino vote in the 2006 elections.

The Texans will stand tough against the U.N. encroachment on National Sovereignty. Let's hope the SCOTUS does not abrogate their responsibility to the U.N.

Internet Ronin said...

Jeff: In fact, I bet Texas is bigger than France and the Netherlands combined! LOL!

Sigivald said...

David: How does talking to their consulate get them out of jail?

As far as I understand it, such communication has no such power. The Mexican Consulate can't release people from American jails, after all.

hdhouse said...

ohhh i get it. Size does matter. Then Alaska should be king of the hill in deciding things like this.

Why oh why do you (collectively) rely on the judgment of the executive (both national and Texas)to decide on a case by case basis? Somehow I thought that we weren't a nation with a soverign rather we were a nation with laws and order that all had to obey.

Moreover it isn't the right of individual States to "stand firm against incroachments of National Sovereignty". I think that is why there is a body of national law that in some instances seems to trump local law.

Further, can someone show me where the chief law enforcement officer has jurisdiction on the judiciary? Just curious.

JohnF said...

I was puzzled by this statement from the Times' article, quoted by Ann: "When the question of whether the international tribunal’s ruling must be followed reached the United States Supreme Court last year, President Bush issued a memorandum to Attorney General Alberto R. Gonzales directing state courts to abide by the decision of the tribunal."

The attorney general doesn't run the state courts, so how could he be directed to have them do anything? Is this just bad reporting for a presidential directive instructing the A.G. to intervene in state court proceedings and state the U.S. position? Does anybody actually have a copy of the "memorandum"?

Al Maviva said...

John, you really don't get it, do you? Here's how the Living Breathing Constitution works.

The state district court decides the criminal case, unless the Mexican executive branch intervenes. On appeal, the state appellate court decides issues of law, unless the President of the U.S. and the Attorney General decide otherwise. On discretionary appeal, the state supreme court and federal courts issue a final decision in the case - unless the ICC, the Hague, the United Nations or the Supreme Court of Zimbabwe, or some obscure Scottish professor of comparative law feel otherwise - in which case the U.S. Supreme Court interprets the intent of those august bodies, in the name of treaty and international law.

And if you you don't like that result, you can always appeal to your local town council or college student body legislature to overrule that decision and give you something more in keeping with your personal preferences.

I think that's how it works...

Seven Machos said...

Having served as an American consular officer, I find this fascinating and I am not sure where to start. Americans in jail in other countries do get visits from local consular officials whenver possible, and it's possible virtually everywhere, every time.

Off the top of my head, I would say that it is very likely that there is fundamentally no way that the Mexican government has the resources to visit or even track all the Mexican prisoners in the U.S.

JohnF said...

I found what I think is the "memorandum" here.

It's not long, and just says:

Memorandum for the Attorney General

SUBJECT: Compliance with the Decision of the International Court of Justice in Avena

The United States is a party to the Vienna Convention on Consular Relations (the "Convention") and the Convention's Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol), which gives the International Court of Justice (ICJ) jurisdiction to decide disputes concerning the "interpretation and application" of the Convention.

I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its inter-national obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Avena), 2004 ICJ 128 (Mar. 31), by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.

This seems to me only to ask the A.G. to do what he can to get the state courts to obey the international tribunal. I don't see how this usurps anybody's constitutional position, unless the argument is being made that just because of this memo the state courts are bound to obey. Was that the argument?

Mortimer Brezny said...

He exceeded it by ordering them to do x; but they exceeded their authority by not deferring to his inherent power to craft an executive agreement and engage in public and private diplomacy (which they admitted he has). I think the court overstepped its bounds knowing that SCOTUS could make the distinction I just did, but not wanting to defer to the President in the same breath it rejected his order (because that wouldn't look convincing in the future).

Mortimer Brezny said...

unless the argument is being made that just because of this memo the state courts are bound to obey. Was that the argument?

Right. That's the part the courts was right on. The rest is bunk.

Seven Machos said...

1. This is a huge case the more I think about it, as it puts international law squarely at odds with the basic precepts of American federalism. Ultimately, if federalism and international law are to live together, the right decision would be to mandate that people arrested under federal law must be told about their rights, etc. People arrested under state law are out of luck. Otherwise, either federalism or international law are going to have to go (unless Congress intervenes).

2. What's really, really irritating about this issue is that a meeting with a consular officer has absolutely nothing whatsoever to do with the underlying crime.

Fritz said...

Bush bashing headline from the Internationalists no less. I was happy to read that President Bush withdrew the US from this Convention. I'm sure this UN Court would be ruling in favor of all our GITMO vacationeers.

M J Lutz said...

I'm not a constitutional scholar - just a lowly software engineering professor - but this clause from the constitution seems to me to put the state court on shakey grounds:

Article VI, Clause 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.

Thus, IMHO, this isn't a federalism issue at all. I see Gonzales's memo as simply a restatement of this constitutional provision.
Perhaps Ann or someone qualified in constitutional law can clarify this.

Not to say I agree with the outcome - I don't like the ICJ meddling in U.S. affairs - but we may be hoist on our own petard.

Simon said...

M J Lutz said...
"I'm not a constitutional scholar - just a lowly software engineering professor - but [the supremacy clause] seems to me to put the state court on shakey grounds."

My understanding is that the administration has withdrawn the United States from that treaty, but even if it has not, is the treaty is self-executing?

"Courts from the common law tradition of the British Commonwealth (with the notable exception of the United States) traditionally have followed a fairly strict dualistic approach to domestic incorporation of treaties. Under that approach, a treaty is considered non-self-executing – that is, it becomes enforceable in domestic courts only when the national legislature has enacted specific legislation implementing the treaty’s provisions into domestic law ... [But American Federal Courts] grant some treaties self-executing status within U.S. law, while others (particularly human rights treaties) require implementing legislation in order to be enforceable in the courts."

M. Waters, Foreign Authority Through a Narrow Lens: Interpretative Incorporation of Treaties at 9-11, text accompanying nn.18-28.

rhodeymark1 said...

What's the problem? Tell the Mexican Consul to meet with the condemned. They can serve the last meal (burrito sandwich). Better yet, hold the spiking at their office - those gurneys have wheels don't they?
We are talking about illegal alien convicted killers here, right? Since when is murder a job that Americans won't do, Senator McCain?

Richard Dolan said...

This all seems a bit overblown. When international obligations of the US impact on a pending suit, it is common for the Dep't of State to advise the court (federal or state) of the position of the US, and of the US's international obligations. Sometimes that happens at the request of the court, sometimes at the US Gov't initiative, and sometimes at the request of a foreign gov't impacted by the US's performance of its treaty obligation at issue. It's normally entirely discretionary with the Executive Branch whether to do it. When those view are communicated to the judiciary, it is also typically the Dep't of Justice that does so.

If I am right that this is the context, then the memo that got the Texas court all riled up sounds like a direction from Bush to the AG to inform the courts of the US's international obligations with respect to Mexican defendants in criminal cases, with the expectation (usually justified) that the courts (federal or state) will conform their procedures to take action to comply with the US's international obligations. Where a treaty is self-executing, as Simon notes, the court must do so as a matter of federal law and the Supremacy Clause. But even where the treaty or other international obligation of the US is not self executing, courts generally go out of their way to avoid snubbing the US's international obligations.

Given the number of Mexican nationals that are likely to be incarcerated in Texas, the Texan authorities may want to avoid what they may see as an administrative burden in contacting the Mexican consulate in each case. But it must be rare when administrative burdens of that sort are allowed to trump an international obligation, particularly where the US wants foreign countries to provide such notice to the American consulate when US citizens are in trouble abroad. Putting that aside, it's hard to see what the real burden is here, since the Texans ought to be able to come up with a "form," fill-in-the-blanks kind of notice, which they could use to provide any required notice to the Mexican consulate.

Strange that the Texas courts have turned it into such a big deal. In all events, it sounds like this case is on its way to a return engagement with the SCOTUS.

Anonymous said...

I'm confused -- I thought Bush only used the powers of the Imperial Presidency to keep innocent people in jail illegally. Now he's overreaching to let guilty ones out?!?

Man, it's getting harder to keep up with all this.

hdhouse said...

ahhh pastor jeff -

you assume that mr. bush gets out of bed the same way every day..but no. every day is a toss the dice study in inconsistency. it is as if he has this giant spinner, you know like you had as a kid when playing games and you spun this thing around and it's little arrow point toward a number or a place on the game board?...

anyway with boy george you can count on yesterday being forgotten, today being a search for a new toy and tomorrow just a dream filled with horsies and crayons.