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SCOTUS tells the ICJ to go hang
March 31, 2008 7:31 PM   Subscribe

On March 25, the Supreme Court held (pdf) that rulings by the International Court of Justice are essentially not binding upon state courts. This paves the way for Texas to execute one Jose Ernesto Medellin for the rape and murder of two teenage girls.

The Texas Court of Criminal Appeals judgment of the ruled (caution: disastrously formatted HTML) in 2006 that Medellin's objections, grounded on the fact that the Mexican consulate was not notified of his trial, were not sufficient to vacate his conviction, as he had been provided with a competent legal defense and none of his constitutional rights had been violated.

The ICJ held (huge pdf) (summary) that the Vienna Convention creates individually enforceable rights, that Medellin's rights had been violated, and that Texas should order a new trial. President Bush, surprising everyone, ordered Texas to comply.

The Supreme Court, which voted 6-3 to affirm the Texas court, held 1) that judgments of the ICJ are not directly enforceable as domestic law, and 2) the President cannot require states to effectuate the judgments of foreign courts.
---
The Court's 2005 opinion (pdf) withdrawing certiorari as improvidently granted.

Commentary:
Volokh: (1, 2)
OpinioJuris: (1, 2)

And! discussion questions!
posted by valkyryn (59 comments total) 1 user marked this as a favorite

 
My first FPP. Be gentle.
posted by valkyryn at 7:33 PM on March 31, 2008


Dammit. First two links below the jump are reversed. Sorry all.
posted by valkyryn at 7:36 PM on March 31, 2008


Your "International Court of Justice" link is broken. Just sent a quick note to the admins via the contact link and they'll fix it for you.
posted by amyms at 7:38 PM on March 31, 2008


They fix your reversed links too. No worries.
posted by amyms at 7:39 PM on March 31, 2008


For those of us who can't/won't load pdfs, can someone give a recap of which Justices voted which way?
posted by Banky_Edwards at 7:41 PM on March 31, 2008


Roberts, Alito, Kennedy, Thomas, and Scalia joined in the majority, with Stevens filing a concurring opinion. Breyer, Souter, and Ginsburg dissent in a single opinion by Breyer.
posted by valkyryn at 7:44 PM on March 31, 2008


can someone give a recap of which Justices voted which way?

Breyer, Ginsberg and Souter dissented, according to the Houston Chronicle.
posted by amyms at 7:46 PM on March 31, 2008


oops, shoulda previewed
posted by amyms at 7:46 PM on March 31, 2008


What a horrible piece of sensationalistic journalism in the 'rape and murder' link:

"The crime occurred in northwest Houston, just a few blocks from where I attended church as a child."

Quick! Cram references to children and churches in there to elevate Teh Horror!!!

Yes, it's a horrible crime, but what on earth is the writer doing injecting their personal input into the first paragraph? The story is supposed to be about the story, not how it affects them.
posted by Brockles at 7:47 PM on March 31, 2008


You should be pilloried for using the phrase "below the jump".
posted by mr_crash_davis at 7:51 PM on March 31, 2008


but what on earth is the writer doing injecting their personal input into the first paragraph?

Possibly because it's in the Viewpoints, Outlook section, and the word Editorial is in the URL.
posted by Alvy Ampersand at 7:55 PM on March 31, 2008


Great post. One of the things that interested me about this case was the heavy layers of irony - the Bush administration arguing against the state of Texas to spare the life of a convict, on the basis that the US needed to respect international law. Spooky!
posted by whir at 8:01 PM on March 31, 2008 [8 favorites]


I don't see why this is such an important case since I always thought that a basic tenet of treaties is that if they are not self-executing they are not enforceable unless the domestic state executes it, which is what I think this case is upholding. But I am far from an expert on international law, so could someone explain to me why this is important?
posted by Falconetti at 8:19 PM on March 31, 2008


this is a tough question. The thing is, treaties are supposed to be constitutionally binding. But, questions of whether we should participate in these international criminal ventures aside, what about interpretations of those systems by international court bodies?

To be honest, U.S. courts aren't going to hand over their power to foriegn courts. Ever. This is a Judicial v. Executive battle
posted by Ironmouth at 8:27 PM on March 31, 2008


Yeah, and yet another power-grab from the Unitary Executive. GWB, by backing the international courts, can now go "court shopping" outside the US to find court interpretations that please him, and then he can have the power to override domestic courts. It's a pretty damn bad precedent.
posted by Slap*Happy at 10:10 PM on March 31, 2008


Slap*Happy, I'm not following you. How would that process work, and how would this decision support it?
posted by brain_drain at 10:15 PM on March 31, 2008


This is a wildly veering tangent, but I've read the word "rape" and conjugations thereof 8 times today* and this was the last in that series. I hope you will forgive the outcome of my simple scanning of posts before bed.

With every flinchy fibre of my being, I despise that word and the frequency with which I have to readjust my mind and heart again after seeing it. No matter how good or productive or restorative the day has been. It's just such a colossal weight. Worse when those who are using it don't recognise precisely how heavy it is. Bless them.

I try not to let it get to me because I'm sure it's just me and I can't speak for others, but it does manage to exceed my positive outlook and attempts to keep it that way at a certain point, though. It bothers me that this occurs more than once a week. Once a year would be too much, to be honest. I understand that I'm probably a bit sensitive about the whole thing, compared to others, so please pardon my juvenile wistfulness for an unlikely-to-be-granted wish.

It'd be nice to go one whole day without having to see it, to be able to make the choice...my gods, that would be such a beautiful change**. If less loaded words could be used - even just a willingness to keep the word reserved for reports, documentation, and, where it makes sense, education and outreach - would be nice. Merely using it strictly within content after a less explosive headline would be worth celebrating.

I'd keep my eye out for that day, but I'd rather notice it by realising later that it just happened, you know what I mean?

*It may (not?) be worth noting the only things I've had time to read after 9 hours of work and 7 hours of household responsibilities have been MeFi & my iGoogle home page (top & odd news and a few common blogs, at that; LJ was blessedly "rape"-free [today; so far]).

**Definitely would be better if the act itself would disappear entirely, but, in our ludicrously sickening reality, it shows no signs of abating.
posted by batmonkey at 10:31 PM on March 31, 2008


I heard about this case on C-SPAN a few days ago, and I was surprised at how many members of the public seem to be missing an important point: if the USSC had decided the other way, it could conceivably increase the power of the Executive over the Judiciary tremendously, without requiring or leaving room for a whole lot of issue-by-issue guidance from the Legislature. That seems pretty dangerous to me; it looks a lot like a "back door" way of forcing unpopular policies through via treaties without making it explicitly clear that they are self-executing.

This isn't a 'death-penalty argument' or a 'race argument' (the two areas that the discussion seemed to focus on, before I turned the radio off). It's an executive-power argument, and I think the Court made the right call. It should be a warning sign to anyone when the Bush administration weighs in favorably on an issue, given their apparent goal of turning the Federal government into a Roman-style elected dictatorship.

A quick look at recent history shows how important an independent judiciary can be, as a counterweight to both the Executive and the Legislature; anything that might tinker with the balance (further than has already been done) seems ill-advised.
posted by Kadin2048 at 10:37 PM on March 31, 2008 [1 favorite]


The Supreme Court, which voted that... the President cannot...

Still waiting for this somewhere else.
posted by moonshine at 10:46 PM on March 31, 2008 [1 favorite]


There were a number of different aspects to this case. One was the issue of "emerging international law" and the question of the ICJ's jurisdiction. SCOTUS declared that the ICJ did not have binding jurisdiction over the states.

This was also a federalism case, and SCOTUS decided in favor of the states over the federal government. And it was a balance-of-power case regarding the executive branch. SCOTUS decided against an expansion of power by the executive branch.

My opinion is that all three of those were decided correctly.

Just in passing, the business about treaties not necessarily being binding is based on Reid v. Covert, from 1957.
posted by Class Goat at 10:56 PM on March 31, 2008


batmonkey, I'm sympathetic to your point and I don't like to see the word used in a rhetorical context - eg, "raping the earth" or whatnot - but in this case the man on trial had been convicted of a literal act of rape, and I don't really see how the term could be avoided.
posted by whir at 11:07 PM on March 31, 2008 [1 favorite]


It's avoided quite easily many times a day when the words "sexual assault" are used, instead.

Believe it or not, those two words are a lot less inflammatory than the smaller, easier word.
posted by batmonkey at 11:45 PM on March 31, 2008


The definition of "sexual assault" as commonly used seems to unfortunately be so vague and broad that it's in no way a replacement for "rape". The first link when googling for the term defines it as "anything that forces a person to join in unwanted sexual contact or attention", and includes everything from rape to someone exposing themselves in public to sexual harassment.
posted by Joakim Ziegler at 11:54 PM on March 31, 2008


Batmonkey, what whir said, and more so. There is no more appropriate use of the word "rape" than in this context, nor is there a more appropriate word to use. I don't think refraining from using the word here, in this way, is a reasonable request at all. In a private conversation with you, for sure, but this isn't one. That kind of aversion is a symptom of PTSD, as I'm sure you're aware; generally readers can't be assumed to have any particular PTSD aversions.

I'm sorry it's one of your buttons, and I'm sorry that valkyryn pushed it, but he cannot be reasonably expected to know that, he obviously didn't do it deliberately, nor can he reasonably be faulted for it. We all have the right to use the word (or any other emotive words) in their correct context at the very least. Whether offensive words generally are acceptable is debatable and in the end it's the moderators' decision but I think the general standard is, so long as they are relevant and understandable, not trolling, and not directly intended to strike at an individual member (who hasn't brought it on themselves by prior comments of their own), mere offensive words seem to be tolerated here.

But where the context is inappropriate, I don't disagree, and you should flag it as offensive/sexism. If you want to discuss it further, start a MetaTalk thread.
posted by aeschenkarnos at 12:08 AM on April 1, 2008 [2 favorites]


The ICJ is not a foreign court. It is an international institution, and one with an American judge sitting on the panel (Thomas Buergenthal, who in addition to being a legal scholar is also a very nice man ). The Americans already repudiated compulsory ICJ jurisdiction when it seemed that the ICJ would rule on the inconvenient Nicaragua case. Now the so-called Supreme Court announces that the Americans won't even accept ICJ rulings when vitally important UN compacts like the Vienna Convention on Consular Relations, treaties that the USA willingly signed, and which as elements of the UN are subject to ultimate interpretation by the ICJ.

This is a terrible blow to the development of international law, and to the international legal order. The Fifth Circuit Court of Appeals ruled in 2004 that the ICJ doesn't have any power, and here the Supreme Court basically agrees. It's not that this is wrong, per se, since the ICJ of course has no inherent power of its own. But the entire basis of ICJ jurisdiction over international disputes comes from parties agreeing to be bound by the decisions there. I understand that the USA has its preposterous federal system, where we all pretend that the states are little sovereigns, but to put that principle above the real international treaty obligations that the USA has to (in this case) at least 50 Mexican citizens sets a horrible precedent, although it does nicely accord with the ruling of US v. Alvarez-Machain.

/rant off.
posted by 1adam12 at 1:17 AM on April 1, 2008 [1 favorite]


Bush made that demand reluctantly after an international court concluded Medellin was improperly denied access to his consulate before his original prosecution, a violation of a treaty signed by the United States decades ago.

Chief Justice John Roberts wrote the majority opinion saying the international court "is not domestic law," thereby restricting the president's power over states.


The ICJ may not make domestic U.S. laws, but treaties ratified by the U.S. Senate most certainly do. Was the treaty referred to above not ratified by the Senate? Or does the SCOTUS take it upon themselves to dissolve them?

For all the whining about "activist liberal judges" there is no action like that which comes from so-called conservatives flexing their puny intellectual muscles.
posted by three blind mice at 1:29 AM on April 1, 2008


I understand that the USA has its preposterous federal system, where we all pretend that the states are little sovereigns, but to put that principle above the real international treaty obligations that the USA has

That's the core of the issue. The Supreme Court is saying that the word of the USA, so far as treaty obligations are concerned, is now worthless. No other nation may rely on it. Of course everyone suspected that was the case, if it came to the sticking point, but to say it outright, over such a trivial matter as a criminal trial, shows an amazing combination of arrogance and naivete.
posted by aeschenkarnos at 3:34 AM on April 1, 2008


Can someone set me straight on some basic legal facts about the US relationship to the ICJ / World Court? I seem to recall that there was some sort of international agreement which sort of set up the ground rules for the ICJ, which was approved by the US legislature but vetoed by the Bush administration in one of its rare first-term vetoes, along with the Kyoto Protocol and other multilateral ideas which have obviously been of no use to us since then because other nations apparently can't speak Texan English. But I digress, has the ICJ treaty been ratified by the US?

Also, beyond that, I'm curious about whether the ICJ has any real place in US law for those who agree with this decision (I guess including the SCOTUS now). EG Class Goat, when you state that you think all three aspects of the case were decided correctly, is there any room in that legal framework for the ICJ at all? Assuming the US signed on to the ICJ treaty, where would the legal boundaries between US law and international verdicts handed down by the ICJ live? Would you say that the ICJ's opinions have no relevance at all under the US legal system?

(I'm not trying to call anyone out, I'm just genuinely curious as a layman about what the arguments are, pro and con.)
posted by whir at 4:05 AM on April 1, 2008


aeschenkarnos, your assertion isn't any more true today than it was before the ruling was issued. The US has always objected to ICJ jurisdiction, correctly perceiving that the ICJ, like all international "judicial" bodies, represents an impingement upon its sovereignty. If foreign courts get to tell US courts what to do, there's really no telling where that will end.

Warm fuzzy feelings about internationalism aside, there are good policy reasons for this decision. The US is a republican form of government, and the Constitution guarantees that to its citizens. Allowing a foreign body over which US citizens have zero control would compromise that guarantee, as the ICJ represents an unelected and unaccountable foreign entity. This doesn't just violate abstract concepts of sovereignty: the US recognizes rights that other nations do not and vice versa. So in the US, one is innocent until proven guilty, but this is not so in France. Likewise, the US has very strict evidentiary rules about what can and cannot be shown to the jury, whereas most European courts allow things which would be clear violations of 4th Amendment jurisprudence.

whir, the practical result of all of this is that the ICJ really doesn't seem to have any significant role in the US legal system. Unlike European states, which have delegated a significant portion of their sovereignty to the EU (which takes every opportunity to increase its own authority at the expense of member states, similar to the federal government in the US), the US tends to believe that it has a better view of what is right for its citizens than Eurocrat policy-wonks, or, at least, that its view of what is right is unique enough as to be inadequately represented in any international forum.
posted by valkyryn at 4:53 AM on April 1, 2008 [1 favorite]


As far as I know, Bush didn't veto anything passed by Congress until last year.
posted by oaf at 5:00 AM on April 1, 2008


I also find it interesting that either the Bush administration didn't present, or the Supreme Court just ignored, the fact that the Vienna Convention is federal law, and orders from state courts conflicting with it can and should be vacated.
posted by oaf at 5:03 AM on April 1, 2008


whir arguments in favor of expanded ICJ jurisdiction are almost always based upon some kind of natural rights flavor of human rights theory. The reasoning goes that individual governments are morally bound to observe certain rights and that international bodies are inherently competent to exert authority over national governments. Unfortunately, the human rights community is pretty adamant about refusing to elucidate exactly what those rights are and where they come from. This way new "rights" can be "discovered" whenever convenient.

This view doesn't have a lot of traction in the US judicial system, which has functioned almost purely on positive law for the better part of a century; though the 19th century saw a strong natural law theme in American jurisprudence, this has all but vanished. This is more or less true on both sides of the aisle, though when a liberal or conservative is attempting to defend a right the other believes invalid, natural rights are frequently invoked. Uncontroversial rights are usually protected by the Constitution or by statute, so abstraction isn't usually necessary. But in general, making a natural rights argument in a US court, at least on the federal level, almost always loses, and if a court cannot find a particular "right" enshrined somewhere in a particular statute or constitutional provision, the court will probably hold that the right in question does not exist.
posted by valkyryn at 5:03 AM on April 1, 2008


Great post and informative followups valkyryn, thanks.
posted by Skorgu at 5:18 AM on April 1, 2008


As I said, it was a veer set off by seeing the word so many times yesterday, mostly on MeFi.

And then you guys used it over and over again when trying to "explain" something that's actually semantic laziness after I acknowledged it as almost inevitable for this particular post in my jittery attempt at wishing other people would hip to the knife they're carrying.

This "civilisation" we've created sucks so hard in so many ways, from top to bottom and in between with so little relief and so much unnecessary pettiness. No safe place anywhere, no matter what anyone may tell you.

Because I know that, I also know it was wrong of me to hope I could encourage some to consider a change in approach or that people could read the overall concept and understand it's not about this post specifically nor a request for an English lesson that I clearly didn't need.

Damn me and my retarded optimism in the face of frustration and fear. I know people better than that and I spoke up anyway.


I'm an idiot. Forgive me, please.
posted by batmonkey at 6:45 AM on April 1, 2008


I also find it interesting that either the Bush administration didn't present, or the Supreme Court just ignored, the fact that the Vienna Convention is federal law, and orders from state courts conflicting with it can and should be vacated.

Nobody ignored anything.

The Vienna convention creates international obligations on the part of the U.S. Nobody is denying that. But this is very different than saying that Avena is binding domestic law that can be privately enforced.

The court was reaching the second point, not the first.
posted by Mr. President Dr. Steve Elvis America at 7:09 AM on April 1, 2008


oaf, it's important to remember that Medellin first raised his Vienna claims after his conviction was final. In some sense, refusing to grant relief on those grounds is simply upholding standard--and very important--doctrines related to the preservation of appeals. It is universally the case in the American judicial system on every level--local, state, and federal--that if an is not raised at trial, it cannot be raised on appeal. Otherwise every defendant could thwart any trial by simply not bringing up issues at trial and raising them one at a time on appeal. The courts have no tolerance for that sort of nonsense and will always throw out any appeal which was not preserved at trial, even if it's valid. From this perspective it really didn't matter the source of law upon which his claim was raised.
posted by valkyryn at 7:22 AM on April 1, 2008


valkyryn your assertion isn't any more true today than it was before the ruling was issued. The US has always objected to ICJ jurisdiction, correctly perceiving that the ICJ, like all international "judicial" bodies, represents an impingement upon its sovereignty. If foreign courts get to tell US courts what to do, there's really no telling where that will end.

It's not that the foreign courts get an unlimited right to tell US courts what to do; it's that the US agreed that its courts and other institutions of government would abide by the treaty, presumably in exchange for some advantage from foreign governments, and now have declared the intent to renege on that agreement. Where such things end is the same place they should start: up front, in the terms of the treaty. A treaty is a contract. When the US signed off on the creation of the ICJ, it expressed some clear reservations, as the treaty system allows, and it is entitled to abide by those reservations, as it said it would. But it is not entitled to make up new ones after the fact, without the agreement of the other parties to the treaty.

Think of it this way: if I sell you a car for $500, and I give you the car and you accept it, does it now impinge on your sovereignty for me to demand $500 from you? You are free to decide not to give the money to me, and I may or may not be able to make you, or take my car back, but honoring your agreement does not diminish your freedom to engage in the agreement in the first place. Your failure to honor it greatly risks our freedom to engage in any future agreements together, as you have clearly shown that you cannot be trusted or believed. If you decide not to give me the $500 since you have promised it to your mother, or if you decide you can't use the car as its steering wheel is on the wrong side, you must, at the very least, give the car back to me.

International law operates on the polar opposite of warmth and fuzziness; it's suspicion, brinkmanship, carefully managed distrust. The question now is the US's continued capacity to negotiate international agreements and to fulfil them. How does one deal with a trading partner who cannot be believed? Either everything is on a "each grab your share and run" basis, or you re-negotiate, you circumscribe what will be agreed to, you give back whatever advantages you got that exceed what you gave for them, and you then promise to adhere to the new, mutually satisfactory, deal. But you can't expect your new promise to be taken as seriously as the old one. Both natural law and positive law take enforceability of contract as a given. Parties are entitled to know what they have agreed to, and have the benefit of those agreements from each other.
posted by aeschenkarnos at 7:23 AM on April 1, 2008


valkyryn From this perspective it really didn't matter the source of law upon which his claim was raised.

That is a perspective I find more intellectually convincing, although ethically appalling. To allow an error to persist for the convenience of the court brings into question whether the purpose of a court is as an instrument of justice, or as a mere dispenser of certainties. It reminds me of that famous quote of Antonin Scalia's: "Mere factual innocence is no reason not to carry out a death sentence properly reached." (Herrera v. Collins 506 US 390 1993)
posted by aeschenkarnos at 7:36 AM on April 1, 2008 [1 favorite]


It's not that the foreign courts get an unlimited right to tell US courts what to do; it's that the US agreed that its courts and other institutions of government would abide by the treaty, presumably in exchange for some advantage from foreign governments, and now have declared the intent to renege on that agreement.

This is far from clear, and the majority disagrees with you--in fact, it's not even clear that the minority agrees with you. Why do you think that the U.S. agreed that ICJ rulings would be privately enforceable in domestic courts? Apparently none of the other signatories take this view.

The U.S. clearly has obligations under the treaty, but it has to discharge those obligations in a Constitutional manner--the President ordering a state court to rule a particular way is not such a manner.
posted by Mr. President Dr. Steve Elvis America at 7:36 AM on April 1, 2008


oaf, it's important to remember that Medellin first raised his Vienna claims after his conviction was final. In some sense, refusing to grant relief on those grounds is simply upholding standard--and very important--doctrines related to the preservation of appeals.

It's worse than that. The defendant was trying to double-dip on habeas petitions, it seems. He'd already had an appeal, already collaterally attacked it, and now wanted to collaterally attack it yet again, and get his conviction overturned on what would count as a "harmless error" under domestic law.
posted by Mr. President Dr. Steve Elvis America at 7:39 AM on April 1, 2008


Batmonkey, even if all of us here and now were to promise never to use the word that so disturbs you again, and to adhere to that promise, anyone new, or who just didn't participate in the thread, wouldn't see it. There is absolutely no way that what you ask for can be granted except at a software level.

This raises a potential solution for you, come to think of it: Webvocab is a greasemonkey script for Firefox that will replace words in your browser according to a user-created list.
posted by aeschenkarnos at 7:45 AM on April 1, 2008


Mr. President Dr. Steve Elvis America This is far from clear, and the majority disagrees with you--in fact, it's not even clear that the minority agrees with you. Why do you think that the U.S. agreed that ICJ rulings would be privately enforceable in domestic courts? Apparently none of the other signatories take this view.
Even if this just amounts to a mutual agreement between all signatories to ignore the treaty, you make an excellent point, and unless an example of a signatory that does take that view shows up, I must accept its validity.

However, given the nature of the right given by the treaty--to have one's consul notified of one's arrest--I question where else it could be applicable, other than in domestic courts.

The U.S. clearly has obligations under the treaty, but it has to discharge those obligations in a Constitutional manner--the President ordering a state court to rule a particular way is not such a manner.
But if no Constitutionally-valid mechanism to discharge those obligations exists (and arguably some may interpret the ruling as saying that none can exist), and if the obligations give rise to no private right to enforce them, then this would be just another means of avoidance of fulfilment of the treaty. Signing it, then saying "we actually can't do this"; ie, reneging.
posted by aeschenkarnos at 7:57 AM on April 1, 2008


> it's that the US agreed that its courts and other institutions of government would abide by the treaty

That's not exactly true. The treaty was not explicitly "self-executing." It may have obviously represented an intent by the government to comply, but what the USSC said was that that intent isn't enough. Unless the treaty is explicitly self-executing, not only does the legislature need to ratify the treaty, they also need to change the appropriate U.S. laws. You can't, in other words, just pass a treaty and then hand-wave away all the issues regarding its practical implementation, leaving the public and the courts with a Code that says one thing, and a treaty that says something contradictory.

I can't see anything wrong with this. It doesn't prevent the U.S. from entering into treaties in the future, it just makes clear that either (A) the treaty needs to be explicitly self-executing, and ratified in view of this, or (B) if it's not self-executing, the treaty represents the intent and commitment of the government, but it must be followed by changes to U.S. law through the normal process in order to have any effect within the borders/jurisdiction of the United States.

From an outsider's perspective, I don't think this changes much. It just means that in the future, you're not wise to assume that a non-self-executing treaty will have the effects within the U.S. that you think it will, until the laws have actually been changed and are printed in black and white in the U.S. Code.

From what I've read, this is pretty well-understood international law: treaties that aren't self-executing require the ratifying nation's government to make the changes to their laws, but they don't change the laws themselves, automatically. If you're looking for someone to blame in this particular case, I think blame probably lies with the Legislature for failing to do their part and implementing the treaty. If they hadn't left things in such an ambiguous state, this problem never would have happened. But given that they did, I think the USSC ruled correctly.
posted by Kadin2048 at 8:02 AM on April 1, 2008 [1 favorite]


Well said Kadin2048 but I think this From an outsider's perspective, I don't think this changes much. It just means that in the future, you're not wise to assume that a non-self-executing treaty will have the effects within the U.S. that you think it will, until the laws have actually been changed and are printed in black and white in the U.S. Code. actually changes a lot, in that outsiders will (or ought) now include "this treaty becomes valid upon the execution of valid legislation enforcing the treaty within the signatory's domestic legal system" or words to that effect, in treaties.
posted by aeschenkarnos at 8:08 AM on April 1, 2008


aeschenkarnos says: It reminds me of that famous quote of Antonin Scalia's: "Mere factual innocence is no reason not to carry out a death sentence properly reached." (Herrera v. Collins 506 US 390 1993)

It cannot possibly remind you of that "famous quote" because Justice Scalia did not write the words that you set forth. Would you care to provide a page cite from his Herrera concurrence for that quotation?

You really ought not to make things up and then put them in quotation marks with inaccurate citations.
posted by Slap Factory at 10:27 AM on April 1, 2008


aeschenkarnos, you'd be more right if this weren't already established legal doctrine in the US. The self-executing/non-self-executing distinction is well known. If anything, fans of international law should applaud the ruling for refusing to allow the President to arrogate to himself a power which properly belongs with Congress. The Court's holding is based on separation of powers as much as anything else.
posted by valkyryn at 10:35 AM on April 1, 2008


Valkyryn: Good FPP. One clarification I would make to this statement: If anything, fans of international law should applaud the ruling for refusing to allow the President to arrogate to himself a power which properly belongs with Congress. The Court's holding is based on separation of powers as much as anything else.

I would say, "refusing to allow the President to arrogate to himself exclusively a power which properly belongs with Congress and the President." No?
posted by Slap Factory at 12:10 PM on April 1, 2008


Slap Factory It cannot possibly remind you of that "famous quote" because Justice Scalia did not write the words that you set forth. Would you care to provide a page cite from his Herrera concurrence for that quotation?

Hmm. A google search shows 987 results; that implies it's widespread, although this could be mere copying of each other. Snopes has nothing about Scalia in any context. (I submitted a query and will post the result, if any.) This is a strong argument for; this is a strong argument against. Here is the opinion itself but this is not the same as a transcript of the spoken words of persons in the court during the case.

It seems to me to be likely that these exact words attributed to Scalia are a deliberate misquote, and I must now count myself among those taken in by it. However there is plenty to indicate that the words of the "quote", although not his own words, are a fair statement of Scalia's position on the matter, ie that the decisions of the court once made ought to stand even against reason and common decency. It seems that this is an opinion that has significant credence within the US legal system and adversarial systems generally.

Here is a verified quote along the same lines, also referenced inthe Humanist article: Judge Laura Stith (Missouri Supreme Court): ''Are you suggesting 'even if we find Mr. Amrine is actually innocent, he should be executed?'' Frank A. Jung, assistant state attorney general:''That's correct, your honor.'' In that case the court found the appellant Amrine could use factual innocence as grounds for appeal. But it ought to be deeply concerning that Jung even made this ludicrous and disgusting proposition, that the state should execute a man it knew to be innocent.

So yes, Slap Factory, it appears you are strictly correct insofar as Scalia did not say that. However it seems this is as far as your correctness extends. Does Jung's proposition concern you? If Scalia's opinion, more nuanced as it may be, summarizes to the misquote under discussion, does that concern you?
posted by aeschenkarnos at 2:55 PM on April 1, 2008


aeschenkarnos now says: So yes, Slap Factory, it appears you are strictly correct insofar as Scalia did not say that. However it seems this is as far as your correctness extends ....

Whatever, dude. If you say that something reminds you of a famous quote, and then you purport to restate the quote in quotation marks, and then you purport to provide a citation for the quote, then you should probably make sure that the "famous quote" actually took place as you claimed. Otherwise you are just being sloppy or dishonest.

It really doesn't matter that some google search suggests differently or that some random prosecutor once said something like what you attributed to someone else. Supreme Court opinions and argument transcripts are easy enough to find, and their content (as opposed to meaning) is not subject to dispute. You really have no good excuse.

Anyway, don't worry about posting the result from Snopes. In fact, you may want to go back there and let them know that we resolved it here.
posted by Slap Factory at 4:14 PM on April 1, 2008


aeschenkarnos and Slap Factory: I can say with certainty (i.e., a Westlaw exact phrase search) that neither the phrase "mere factual innocence" nor "death sentence properly reached" has never been used in any opinion issued by any court in the federal judiciary. It is possible that similar sentiments have been expressed, but that quote does not appear in any case since the founding of the republic.
posted by valkyryn at 4:32 PM on April 1, 2008


However, given the nature of the right given by the treaty--to have one's consul notified of one's arrest--I question where else it could be applicable, other than in domestic courts.

I don't think you should equate "applicable" with "providing a private right of enforcement via the courts." Even in the domestic context, laws frequently don't create a means for private persons to sue to enforce them. Treaties are the same. Often times (and in the case of the treaties here, according to the court), treaties only provide for enforcement between the signatories themselves.

But if no Constitutionally-valid mechanism to discharge those obligations exists (and arguably some may interpret the ruling as saying that none can exist), and if the obligations give rise to no private right to enforce them, then this would be just another means of avoidance of fulfilment of the treaty. Signing it, then saying "we actually can't do this"; ie, reneging.

I'm not sure I agree with your evaluation, but even if you're right, that's just too bad. The U.S. may not violate the Constitution, and to the extent it executes a treaty purporting to commit it to actions contrary to the Constitution, it will have to violate that treaty.

The federal system established by the Constitution may not allow the U.S. to satisfy every treaty obligation that Congress and the President might wish. To the extent that's perceived as a problem, I would suggest a Constitutional amendment.
posted by Mr. President Dr. Steve Elvis America at 7:17 PM on April 1, 2008


Whatever, dude. If you say that something reminds you of a famous quote, and then you purport to restate the quote in quotation marks, and then you purport to provide a citation for the quote, then you should probably make sure that the "famous quote" actually took place as you claimed. Otherwise you are just being sloppy or dishonest.

Right back at ya, Amazing Sniderman. Firstly the word "purport" doesn't mean what you think it means. I did restate the quote in quotation marks, and I did provide a citation, I didn't "purport" to do either. If a more accurate knowledge of one single semi-relevant fact wins arguments in your mind, you might want to make sure you've got that sort of thing covered. Like the actual meaning of the words you sharpen up and fling at people.

You really have no good excuse.

Yes, I do. The error or misrepresentation in the "quote" itself is not mine, it belongs to the originator of the statement, whoever that happens to be. My fault here is in spreading it further. The same goes for the citation, I didn't make that one up either. I vaguely recalled the words "mere factual innocence", googled them, and saw a result with a citation, so I took it at face value. Which I am entitled to do. I am entitled to be wrong. What I am not entitled to do, is continue to be wrong after being proven wrong.

So I'm perfectly willing to accept that Scalia didn't say that. Neither him saying it, nor it being said, is essential to my argument. It's sufficient for my argument that senior officers of justice administration (including Scalia) express similar sentiments, and that is a verified fact.

When you have composed yourself, and if your skills stretch any further than fact-checking, you might like to look into actually addressing the actual argument, the reason why I brought up the "quote" in the first place: the pernicious idea that the convenience of a court or deference to its authority ought to outrank the pursuit of truth and dispensation of justice for which a court exists in the first place. Do you have an actual opinion?
posted by aeschenkarnos at 7:24 PM on April 1, 2008


Steve The U.S. may not violate the Constitution, and to the extent it executes a treaty purporting to commit it to actions contrary to the Constitution, it will have to violate that treaty.

Then it ought to say so, and not say otherwise. If we can agree to that, we're agreed. (For once. :) )
posted by aeschenkarnos at 7:29 PM on April 1, 2008


Then it ought to say so, and not say otherwise. If we can agree to that, we're agreed. (For once. :) )

I would hope it's a matter of common knowledge that the U.S. can't bind itself to violate the Constitution. In any event, I don't think it agreed to do so, in this case. I doubt the treaties in question really were meant to be self-executing. It doesn't appear that any of the signatories take that view.

The complicating underlying question, and the one I think you are getting at, is whether Congress even has the power to implement Avena. It seems that the answer is quite likely that it does not, but on the other hand, Congress never specifically agreed to implement Avena.

Surely it's obvious that a commitment to implement ICJ decisions--with no prior knowledge of what those decisions might be--might potentially be impossible in individual cases for any signatory that isn't a totalitarian state. Maybe this point could've been made more clear when the U.S. signed the Optional Protocol (and indeed, it appears that the inability of the U.S. to implement Avena prompted its withdrawal).
posted by Mr. President Dr. Steve Elvis America at 9:08 PM on April 1, 2008


I don't know Aeshenkarnos, I'm kinda agreeing with what's said. I understand that you made a mistake in attributing a quote to Scalia. However, when confronted with this, you basically turned it into "Well, maybe he technically didn't say it, but it's the type of thing he would say." I find this intellectually dishonest, because you're still trying to slide it in as evidence against the Supreme Court's decision. It no longer becomes what Scalia actually says; instead it's what you think he would have said or should have said. He is held accountable for words that aren't his.

It reminds me of the people that hate Jane Fonda and her Vietnam activities, but believe in the inflated stories that arose. At some point in time, someone decided that the truth wasn't damning her enough and pushed it up a notch. I found that morally reprehensible. I don't find you or the others though, because you honestly made a mistake and believed someone else.

Scalia's not my favorite guy, but let him stand on his own. Let his own words damn him, not words that he could have theoretically said in a parallel universe.
posted by Lord Chancellor at 9:28 PM on April 1, 2008


Scalia's not my favorite guy, but let him stand on his own. Let his own words damn him, not words that he could have theoretically said in a parallel universe.

But his actual words in Herrera aren't particularly shocking. All he says in his concurrence is that the Eighth Amendment doesn't guarantee the right to a federal habeas proceeding solely to present evidence a defendant claims demonstrates his innocence. Of course, nobody except Herrera (and maybe not even him) actually knew whether Herrera was innocent, and it's really quite a strain to suggest that the Constitution demands we give defendants endless bites at the apple, but there you have it.

It's much more sensational to phrase the quote in a way that makes it sound like Scalia knew damn well that Herrera was innocent but decided to kill him anyway.
posted by Mr. President Dr. Steve Elvis America at 9:55 PM on April 1, 2008


Lord Chancellor He is held accountable for words that aren't his ... Let his own words damn him, not words that he could have theoretically said in a parallel universe.
Sure.

Scalia J I would have preferred to decide that question, particularly since, as the Court's discussion shows, it is perfectly clear what the answer is: there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

To find the full meaning of his statement here, we need to compare it to another of Scalia's beliefs: that if a right is not specifically enumerated in the Constitution, that right does not exist. (Surely that he believes this is uncontentious.) Therefore what he is saying here is: there is no right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

That isn't the same as saying that the court may not consider such evidence, of course; he's saying that the appellant has no right to demand the court do so. There is an extremely strong presumption with any organ of government, including the courts, that what it does not have to do, it will not do. So, is Scalia saying the court should decide (and if so, by what process) whether or not to consider the evidence, and if it did decide to do so, its ruling would have effect and appeals against it would be considered on their merits? Or is Scalia saying that there is no reason for the court to consider the evidence, because if it did, an appeal against it would succeed on the grounds that the evidence did not have to be considered, and therefore should not have been?

I nonetheless join the entirety of the Court's opinion, including the final portion, ante, at 417-419 - because there is no legal error in deciding a case by assuming, arguendo, that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution * lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate.

It is interesting that the prospect of a refusal to let injustice stand provokes from Scalia the equivalent of sighs, eyerolling, and sarcasm.

With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.

And what if it does fail? Executive caprice, all else being equal, is more common than judicial caprice. Should a court deny relief to a person who can present convincing evidence of factual innocence, if the executive (for capricious reasons) denies a pardon? Scalia seems to think so.
posted by aeschenkarnos at 12:47 AM on April 2, 2008


Should a court deny relief to a person who can present convincing evidence of factual innocence, if the executive (for capricious reasons) denies a pardon? Scalia seems to think so.

No, Scalia thinks that there's no Constitutional requirement that the court grant relief in such a situation, and I think he's clearly right. The Constitution does not implement every policy that might we might today believe to be wise and just.

Congress is perfectly capable of extending the federal habeas jurisdiction to encompass claims of actual innocence.

It is interesting that the prospect of a refusal to let injustice stand provokes from Scalia the equivalent of sighs, eyerolling, and sarcasm.

Calling it a "refusal to let injustice stand" is the wrong way to look at it. Sure, you're all in favor of playing fast and loose with the law to get the result you want, but when other people do the same to get results you don't want? You freak out, I bet.

Scalia's frustration is due to his fellow justices' apparent willingness to torture the text and meaning of the Constitution to reach the "right" outcome. It demonstrates an utter lack of commitment to the rule of law, which is disturbing in a judge.
posted by Mr. President Dr. Steve Elvis America at 6:45 AM on April 2, 2008 [1 favorite]


The courts have no tolerance for that sort of nonsense and will always throw out any appeal which was not preserved at trial, even if it's valid. From this perspective it really didn't matter the source of law upon which his claim was raised.

Yeah. I don't think there's anything that sends a court into kill mode faster than the sense that it's being played.
posted by oaf at 2:10 PM on April 2, 2008


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