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Life and death of a black and white
August 6, 2008 10:47 AM   Subscribe

Texas executes Mexican national who was denied consul visit.

Jose Medellin, a Mexican national, was born in the border town of Nuevo Laredo, just across the Rio Grande river from Laredo,TX.

Medellín moved to the US when he was 3 years of age, and was 18 years of age in June of 1993 when he participated in the gang rape and murder of Jennifer Ertman, 14 and Elizabeth Pena, 16 in Houston,Texas. He was subsequently found guilty and sentenced to death.

In 2004, the International Court of Justice ruled that the Bush Administration must reconsider the case because Medellin was not informed of his right to contact Mexican consulate officials under the Vienna Convention.

After the ruling, President Bush asserted authority under the Constitution and the various laws of the United States to order states to review the convictions and sentences of foreign nationals who had not been advised of their Vienna Convention rights.

On March 25, 2008, the U.S. Supreme Court rejected the arguments of the Bush Administration, and ruled that President Bush can't force Texas to reconsider, even if in violation of the International Court of Justice.[Previously]
posted by mrducts (121 comments total) 1 user marked this as a favorite

 
When George W. Bush is desperately trying to make you obey international law and adhere to the standards of civilized society, you have problems
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 10:52 AM on August 6, 2008 [45 favorites]


Sounds like an argument in favor of easier naturalization to me. You don't have to deal with treaties if the rapist and murderer is a US citizen.
posted by Faint of Butt at 10:54 AM on August 6, 2008


If the deceased was also retarded, I have won a bet!
posted by Mister_A at 10:57 AM on August 6, 2008 [7 favorites]


What might have happened differently had he been allowed to talk to a consul?
posted by 23skidoo at 10:58 AM on August 6, 2008


Justice?
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 10:58 AM on August 6, 2008 [1 favorite]


Sorry, I wasn't more clear.

I was looking for non-snarky information about what things might have happened if he had gotten to speak to a consul.
posted by 23skidoo at 11:00 AM on August 6, 2008 [1 favorite]


Jesus Christ, 1993? When you drag things out for 15-20 years like that, you start running the risk that you're executing someone entirely different than you arrested. Why can't the legal system get its shit together?
posted by crapmatic at 11:01 AM on August 6, 2008


matt running a 2-for-1 tag sale today?
posted by yort at 11:08 AM on August 6, 2008


Jesus Christ, 1993? When you drag things out for 15-20 years like that, you start running the risk that you're executing someone entirely different than you arrested. Why can't the legal system get its shit together?

I don't understand that assertion. It's not like a baby swap at the hospital, and if someone murders someone else, that fact doesn't change even if the murderer has a change of heart.

If you arrest someone for a crime, convict them, and execute them quickly, it seems to me you run the risk of killing a person you later find is innocent. If you allow for appeals and due process, which often takes a long time, the chances you are executing an innocent person should decrease.

The biggest problem with people who have been on death row for over a decade is that new DNA evidence proves they are innocent with alarming regularity. We should be thankful we didn't kill some of these people sooner.
posted by Muddler at 11:09 AM on August 6, 2008 [8 favorites]


On March 25, 2008, the U.S. Supreme Court rejected the arguments of the Bush Administration, and ruled that President Bush can't force Texas to reconsider, even if in violation of the International Court of Justice.

So is it the Supreme Court, the Bush Admin or Texas that broke international law? And when do they appear before the court?
posted by DU at 11:11 AM on August 6, 2008 [1 favorite]


You forgot the "dontmess" tag.
posted by GuyZero at 11:11 AM on August 6, 2008 [1 favorite]


This Supreme Court decided that even after an international treaty has been signed and ratified by the Executive Branch and Congress, the individual states can choose to disobey the treaty on a whim. And so, many thousands of treaties that define America's relationship with the rest of the world are now almost worthless. Bush's Supreme Court has put us back in the Wild West.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 11:13 AM on August 6, 2008 [9 favorites]


Two other members of the gang were also sentenced to die. Two had their sentences commuted to life in prison. The sixth, Mr. Medellín’s brother, Vernacio, is serving a 40-year sentence.

From the first link:
Two other members of the gang were also sentenced to die. Two had their sentences commuted to life in prison. The sixth, Mr. Medellín’s brother, Vernacio, is serving a 40-year sentence.
Hmm, why was this guy executed but not the others?
posted by Brandon Blatcher at 11:14 AM on August 6, 2008


...many thousands of treaties that define America's relationship with the rest of the world are now almost worthless.

To be fair, the last 7 years had rendered them pretty useless already.
posted by DU at 11:15 AM on August 6, 2008 [1 favorite]


"...why was this guy executed but not the others?"

I don't know about the other two, but the brother was only 14 at the time the crime was committed. I don't think even Texas executes people for crimes committed at 14.

Yet.
posted by mr_crash_davis at 11:17 AM on August 6, 2008


When George W. Bush is desperately trying to make you obey international law and adhere to the standards of civilized society

I think it's far more likely the key phrase is "President Bush asserted authority" -- that this is another manifestation of the lawyering style of the current administration.

And this is a terrible poster-case, even if it is a good idea to give accused foreign nationals access to their consulate.
posted by weston at 11:20 AM on August 6, 2008 [1 favorite]


crash, sadly Texas will execute people convicted of offenses committed while they were juveniles. Not as young as age 14, though; I believe the minimum is 16.
posted by Mister_A at 11:23 AM on August 6, 2008


Mister_A, isn't that unconstitutional now?
posted by Pope Guilty at 11:26 AM on August 6, 2008


From Mister_A's article:

the Supreme Court has set 16 as the minimum age for death penalty eligibility, but there are many who would like to see that lowered. Former California Gov. Pete Wilson suggested lowering the age limit to 14, and a Texas state legislator has introduced a bill to make it 11
posted by burnmp3s at 11:28 AM on August 6, 2008


Texas should have their own version of 'the lottery,' in which once a year one of their citizens is picked at random and then stoned to death in a stadium event. Just something where they can satisfy their lust for death in an entertainment forum rather than bogging down the courts to do it.
posted by troybob at 11:29 AM on August 6, 2008 [7 favorites]


Since when does President Bush try to prevent Texas from executing people? He was the Texecution-ist governor in history (after he and Alberto Gonzales carefully reviewed each case for five minutes).

a Texas state legislator has introduced a bill to make it 11

Eventually they'll legalize abortion from the other direction.
posted by kirkaracha at 11:31 AM on August 6, 2008 [18 favorites]


Mexican-American War II
posted by swift at 11:31 AM on August 6, 2008


This Supreme Court decided that even after an international treaty has been signed and ratified by the Executive Branch and Congress, the individual states can choose to disobey the treaty on a whim. And so, many thousands of treaties that define America's relationship with the rest of the world are now almost worthless. Bush's Supreme Court has put us back in the Wild West.

Not correct. The Supreme Court confirmed a long precedent that the treaty power cannot be used as a back door to amend the Constitution.

The Court also confirmed a long precedent that the Tenth Amendment is still in operation. This was a state matter and none of the US Government's business.

As to the matter at issue, there's not the slightest doubt that Medellin was guilty. He bragged about it after it happened. Thus there was no injustice.

One other point: Article III clearly defines what is required for federal courts: that the judges be nominated by the President and confirmed by the Senate and that those courts all be subordinate to the Supreme Court. The ICJ doesn't satisfy the provisions of Article III, and the treaty clause cannot override Article III either.

The ICJ isn't a federal court. But even if it were it wouldn't matter; this wasn't a federal issue. It was a state issue and I applaud the State of Texas for flipping the bird to the ICJ. The sooner the corpse of that monstrosity (the ICJ) becomes a laughing-stock, the better off we'll all be.

This was a great victory for national sovereignty. (Of course, to some people "sovereignty" is a dirty word.)
posted by Steven C. Den Beste at 11:32 AM on August 6, 2008 [15 favorites]


That's an old article; I honestly don't know what the current state of affairs is. Sorry if it was misleading.
posted by Mister_A at 11:32 AM on August 6, 2008


You're right, Pope–no longer constitutionally permitted.
posted by Mister_A at 11:35 AM on August 6, 2008


You're right, Pope–no longer constitutionally permitted.

When has that stopped the government?
posted by chunking express at 11:38 AM on August 6, 2008


As to the matter at issue, there's not the slightest doubt that Medellin was guilty. He bragged about it after it happened. Thus there was no injustice.

Uhh...justice isn't when you achieve good ends by dubious means.

This was a state matter and none of the US Government's business.

I restate my question in a different form: What is the status of US states in the eyes of international law? Rogue states with no treaties?
posted by DU at 11:45 AM on August 6, 2008


They all want the white man's job and the white man's woman, remember -- Lou Dobbs is not joking.
posted by matteo at 11:53 AM on August 6, 2008


The murderer/rapist was in the US from age 3. He received the same treatment as anyone else born in America. Mexico's involvement in this case is moot.

If Bush was so worried about violating international law [chuckles] he should have commuted the sentence back in 1995 when he was governator of texas.
posted by HyperBlue at 11:58 AM on August 6, 2008


I honestly don't know what the current state of affairs is.

Well, Napoleon Beazley was executed in Texas in 2002 before Roper v. Simmons was decided in 2004. He couldn't get another stay of execution because the Supreme Court deadlocked 3-3 on his first appeal in 2001. List of juvenile offenders executed in the United States.
posted by mattbucher at 12:02 PM on August 6, 2008


Uhh...justice isn't when you achieve good ends by dubious means.

The treaty in question was not ratified by Texas. I don't see what's "dubious" about a state failing to obey a treaty which it never signed in the first place. I'm with the Supreme Court on this one: if you expect international laws to be binding upon the states, it does seem reasonable to require them to be encoded in Federal law first.
posted by vorfeed at 12:05 PM on August 6, 2008 [2 favorites]


Since when does President Bush try to prevent Texas from executing people?

Submitted for your approval...
posted by kittens for breakfast at 12:07 PM on August 6, 2008 [4 favorites]


Uhh...justice isn't when you achieve good ends by dubious means.

I don't know, man. I do think procedural details like this are important, and the death penalty in the hands of the state makes me nervous. But it sounds like Medellín didn't:

* notify the authorities that he was a Mexican citizen
* raise the issue of not being informed of his Vienna Convention rights during the first trial

And that the courts have reivewed his case pretty carefully and it's pretty obvious he did it. So I can more or less sleep nights about his particular case.

I do think it's a interesting and a bit weird that the Supreme Court case says "a treaty is not binding domestic law, it said, unless Congress has enacted statutes implementing it or the treaty itself conveys an intention," though. Maybe the more lawyerly amongst us can illuminate the arguments for that.
posted by weston at 12:09 PM on August 6, 2008


Stephen's right. How would you like it if Bush signed a treaty with Guam outlawing abortion? Would you want it to trump the US Constitution then?
posted by anotherpanacea at 12:09 PM on August 6, 2008 [1 favorite]


The murderer/rapist was in the US from age 3. He received the same treatment as anyone else born in America. Mexico's involvement in this case is moot.

I believe that Canada has extradited Jamaican nationals who resided in Canada from a similar age although they were not up for the death penalty. This article indicates that one Lloyd Demetrius was deported back to Jamaica (twice!) after several charges including murder in spite of the fact that he was a landed immigrant and had been in Canada since he was 2.

While I understand the Texan proclivity for "frontier justice" the fact of the matter is that this man was a foreign national and pretty much every other country in the world would have deported him to be incarcerated in his country of citizenship.

If an American citizen had been executed in a foreign country and denied a consular visit I expect most Americans would be upset about it.
posted by GuyZero at 12:10 PM on August 6, 2008


Uh, when I said Stephen's right, I just meant about Medellin v. Texas and why it was important that the executive branch win, not the paranoid New World Order Gonna Getcha nonsense about the ICJ.
posted by anotherpanacea at 12:14 PM on August 6, 2008


But it sounds like Medellín didn't... notify the authorities that he was a Mexican citizen

That makes it understandable but not exactly defensible. Odd that no one sought to verify his nationality.
posted by GuyZero at 12:14 PM on August 6, 2008


George "sanctity of life" Bush.
posted by marvin at 12:16 PM on August 6, 2008


If an American citizen had been executed in a foreign country and denied a consular visit I expect most Americans would be upset about it.

Perhaps... but if the American never asked for a consular visit, they'd be wrong to complain.
posted by anotherpanacea at 12:17 PM on August 6, 2008


Do people generally verify nationality? I wouldn't think so.

I don't know the numbers, but my guess is that the number of immigrant Hispanics is less than native Hispanics in Texas, it being ex-Mexico and all that.
posted by small_ruminant at 12:19 PM on August 6, 2008


Odd that no one sought to verify his nationality.

So all brown people need to carry national ID cards, now? And if they don't, they can commit rape and murder without facing the consequences?

Sigh. I just realized that I'm getting pissed off at ignorant commentary on the internet. I fail.
posted by anotherpanacea at 12:19 PM on August 6, 2008 [1 favorite]


(especially if he spoke like an American.)
posted by small_ruminant at 12:20 PM on August 6, 2008


eh? anotherpanacea, we don' t know that GuyZero said that because the guy was Mexican.

It wouldn't be unreasonable to assume that checking nationality was just part of the arrest procedure, though lots of people, especially poor ones, have no proof of it.
posted by small_ruminant at 12:22 PM on August 6, 2008


It seems like the problem was the bad-faith signing of the treaty. "Sure, we'll sign it, but we won't do anything to see that the terms are enforced." It's one thing to assert national sovereignty, (by, say, not signing the treaty) it's another to actively flout the spirit of the spirit of internationalism.

Treaties should have clauses that make it so your signature drops off if your country doesn't actually do anything to follow the terms within a certain timeframe. Or maybe something strategically placed explodes or at least they take your toys away and give you a time out.
posted by wemayfreeze at 12:24 PM on August 6, 2008


How would you like it if Bush signed a treaty with Guam outlawing abortion? Would you want it to trump the US Constitution then?

Constitutional rights come into conflict all the time and even if the Senate approves of the this treaty it wouldn't nullify our protected rights.

Granting consular access isn't limiting anyone's constitutional rights, so I fail to see the legal parallel here.

Interestingly, Stevens concurred with this decision, making it 6-3, so I'll have to read his opinion.
posted by yort at 12:25 PM on August 6, 2008


It doesn't have anything to do with brown people. Presumably they have to check white people in Michigan to ensure they're not dealing with Canadians.

I admit I have no idea what actually happened in this case - perhaps Medellín completely lied about his nationality or honestly thought he had been born in the US. It could be anything. But I expect that there has to be some due diligence in determining the court's authority to sentence someone before doing so. Dude must have had some ID, somewhere. It seems odd that the case got as far as it did before that fact came out. Also, I'm having some troubles RTFA'ing here - NY Times is paywalled, another link is trying to deliver the page as a gzip file. Anyone had a functional background on the case?
posted by GuyZero at 12:31 PM on August 6, 2008


(Of course, to some people "sovereignty" is a dirty word.)

Welcome back!
posted by yort at 12:33 PM on August 6, 2008


I am no proponent of the death penalty, I think it's motivated mainly by a primal thirst for revenge. While there is some satisfaction in knowing "he won't be doing THAT again", if the condemned is found to be innocent after being executed it's difficult to make amends to a rotting corpse. The death penalty should be repealed.

While there's been a lot of discussion about the wrongness of executing people for crimes they committed while juveniles, ignoring int'l treaties, he didn't get to contact the Mexican consulate, etc., very little has been said about the heinous crimes he confessed to committing. Here it is again if you didn't click on it in the OP above.

As mentioned above, he came here as a very young child and was was raised in this society like the US citizen children he grew up with. Other than the technicality of his birth, there was nothing Mexican about him. Moaning about not being allowed to contact the consulate was nothing more than desperately grasping at the only remaining straw to avoid the fate he worked so hard to earn.

Certainly there are other people in this country (legally) who are more deserving all of this attention and hand wringing.
posted by Daddy-O at 12:36 PM on August 6, 2008 [1 favorite]


Troybob, Texas sort of does have a lottery that sates our blood lust. It's called military recruitment.

I'm still a pacifist, even though I feel a killing rage swell up inside me sometimes when I think about what this country's turned into since I was in my 20's. Let's hope that soon things are different everywhere, and by different, I mean better.

It's cheaper to keep a prisoner in jail for life than to execute. I used to be pro-death-penalty, but someone I love dearly changed my mind and I regret that it took so long to change it.
posted by Unicorn on the cob at 12:37 PM on August 6, 2008


How would you like it if Bush signed a treaty with Guam outlawing abortion? Would you want it to trump the US Constitution then?

Guam is an organized, unincorporated territory of the United States so your point doesn't hold up very well.
posted by Daddy-O at 12:40 PM on August 6, 2008


Certainly there are other people in this country (legally) who are more deserving all of this attention and hand wringing.

um, no. Principles go beyond specifics of the case. Always.

If I'm travelling in East Fuckistan I'd like to have all my ICJ access and international treaty protections preserved and not liable to be arbitrarily revoked by some toolbox conservative tribunal majority.
posted by yort at 12:46 PM on August 6, 2008


Guam is an organized, unincorporated territory of the United States so your point doesn't hold up very well.

And according to Unicorn's link, Guam has the most military recruits per capita in the US!

So, you know, there's that.
posted by mullacc at 12:46 PM on August 6, 2008


I'm having a real hard time getting worked up over the treatment this guy received. For my money he got off lightly.
posted by dsquid at 12:47 PM on August 6, 2008


I think it's far more interesting that Texas thumbs it's nose at it's "native son" George Bush than anything else. Rick Perry has cultivated a distance between his government and Bush's for years, though that galls some Texans. Perry has consistently been more "liberal" than the Bush Republicans, so this may be an effort to assuage the Far Right in an election year.

The Bush family has a lot of political power in Texas. This says more about how Texans feel about Federal authority and Bush the Younger's policies than you might think. Not a good sign for Bush.

And as far as Mexico goes, frankly, Mexican Human Rights is pretty much an oxymoron. The Mexican government and every other Latin American government exploits every issue it can in order to prove it's independence and authority versus the United States. It's a combination of machismo and insecurity complex. The Mexican government cares not a whit about it's citizens at home nor abroad. Mexico's anti death penalty policy is straight out of The Vatican, and if the Vatican were to change it's mind, the Mexicans would have their laws changed before the ink dried on the Papal Bull.
posted by Xoebe at 12:48 PM on August 6, 2008


so your point doesn't hold up very well.

in discussions it's generally a good idea not to be a tool in parsing someone's argument for obviously correctable holes just to sidestep it. cf. my "toolbox" mention above.
posted by yort at 12:48 PM on August 6, 2008


The relevant precedent is Reid vs. Covert from 1957. SCOTUS said, "this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty".

The ICJ treaty cannot and does not override Article III or the Tenth Amendment. Under Article III the ICJ is not a federal court and its court orders are not binding. Under the Tenth Amendment the Medellin case was under jurisdiction of the State of Texas; the US government had no power to interfere. That was what the March SCOTUS decision in the Medellin case determined, by a 6-3 vote.
posted by Steven C. Den Beste at 12:48 PM on August 6, 2008 [1 favorite]


I'm having a real hard time getting worked up over the treatment this guy received. For my money he got off lightly.

SCOTUS cases are, generally, much more about the specifics of the individual case and more about clarifying conflicting legal precepts.

Bush v. Gore, 2000, excepted of course.

I don't give a shit about this guy, but I do care about the future implications of this decision. But from Breyer's dissension:
The majority’s two holdings taken together produce practical anomalies. They unnecessarily complicate the President’s foreign affairs task insofar as, for example, they increase the likelihood of Security Council Avena enforcement proceedings, of worsening relations with our neighbor Mexico, of precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation’s reputation abroad as a result of our failure to follow the “rule of law” principles that we preach. The holdings also encumber Congress with a task (postratification legislation) that, in respect to many decisions of international tribunals, it may not want and which it may find difficult to execute. See supra, at 23–24 (discussing the problems with case-by-case legislation). At the same time, insofar as today’s holdings make it more difficult to enforce the judgments of international tribunals, including technical non-politically-controversial judgments, those holdings weaken that rule of law for which our Constitution stands.
posted by yort at 12:53 PM on August 6, 2008 [1 favorite]


The ICJ treaty cannot and does not override Article III or the Tenth Amendment.

Ok, but serious question here: how would this case have gone differently if Medellin had popped out a Mexican passport from day one? My unexpert guess is "somewhat differently" and my point is that you're fixating on the States' rights element of this case when (IMO) the issue is really one of jurisdiction over Medellin in the first place.
posted by GuyZero at 12:56 PM on August 6, 2008


This thing sounds like the result of some crappy death-row counseling and advice given by inmates. Hopeful horseshit that went nowhere as should be expected.
posted by snsranch at 12:58 PM on August 6, 2008


Under the Tenth Amendment the Medellin case was under jurisdiction of the State of Texas; the US government had no power to interfere

IANAL, one would think when the issue of foreign citizens is involved, the USG's interest and related powers increases. The Tenth Amendment doesn't trump the intended meaning of the Supremacy Clause, which was, in Justice Marshall's words:
“all Treaties … 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.” Art. VI, cl. 2. The Clause means that the “courts” must regard “a treaty … as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.”
The alternative would be for all our national treaty partners to have to negotiate treaties with all 50 states separately. Um, yeah.
posted by yort at 1:00 PM on August 6, 2008


I don't understand the Constitutional basis for this decision. It's not like treaties are formed by the Executive Branch alone; Congress has to ratify them. And the Supreme Court has certainly held that the states are subservient to Congress in any other area where it has mattered; people's lives are sure being made miserable in the drug war, for instance.

I just don't get why in this one area, where the credibility of the nation's abiilty to make promises is at stake, Congress and the Executive Branch working together don't supersede the states, but in most other areas, Congress alone does.

Seems like a political decision to me, not a Constitutional one.
posted by Malor at 1:06 PM on August 6, 2008


I like how it's fine for the federal government to take away states' rights in some cases, like the DEA raids of legal marijuanna dispensaries in California, but not in others, like murdering someone who didn't get a fair trial.

It sounds to me like the federal government has an agenda, and states' rights only apply when they meet that agenda. Hey, it's just like individual rights!
posted by jrockway at 1:11 PM on August 6, 2008


um, no. Principles go beyond specifics of the case. Always.

I'm not positive what principles you are referring to, so please explain a little more.

The consulate thing was nothing more than a cynical attempt to save this guy from his well earned fate. He grew up like a US citizen, was living like a US citizen, and for all intents and purposes he was a US citizen and was given every consideration under the US constitution. He may not have even known he was born in Mexico. It is usually against police procedure to ask someone about their immigration status. The guy was grasping at loopholes and the involvement of the consulate would not have changed the outcome of this case one little bit.

I stand by my statement that their are better issues to merit out attention than this one. The fact that we are almost certainly executing people who are innocent of the crime they were convicted of, the abuses suffered by prisoners in our penitentiaries, the list goes on and on. The consulate thing was the merest of technicalities in this case.
posted by Daddy-O at 1:16 PM on August 6, 2008


I don't understand the Constitutional basis for this decision.

well, if you've got some time, here it be.

Points:

"While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis. See, e.g., Foster v. Neilson"

vs. Breyer's dissent:

"Indeed, the majority does not point to a single ratified United States treaty that contains the kind of “clea[r]” or “plai[n]” textual indication for which the majority searches. Ante, at 21, 30. Justice Stevens’ reliance upon one ratified and one un-ratified treaty to make the point that a treaty could speak clearly on the matter of self-execution, see ante, at 2 and n. 1, does suggest that there are a few such treaties. But that simply highlights how few of them actually do speak clearly on the matter. And that is not because the United States never, or hardly ever, has entered into a treaty with self-executing provisions. The case law belies any such conclusion. Rather, it is because the issue whether further legislative action is required before a treaty provision takes domestic effect in a signatory nation is often a matter of how that Nation’s domestic law regards the provision’s legal status. And that domestic status-determining law differs markedly from one nation to another."
posted by yort at 1:16 PM on August 6, 2008


The relevant precedent is Reid vs. Covert from 1957. SCOTUS said, "this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty".

Since states have wide powers under the US constitution, does this mean that the US executive branch can enter into any effective treaty? Would Wyoming, for example, then be able to unilaterally back out of NAFTA? Could Rhode Island withdraw from NATO? Could California refuse to extradite someone? How far does this go?

I'm a non-US citizen with little knowledge of US civics, but am an interested citzen of a nation with a lot of US treaties.
posted by bonehead at 1:17 PM on August 6, 2008


Yort, treaties operate at the level of legislative provisions -- and those too cannot override the Constitution.

The Tenth Amendment doesn't trump the intended meaning of the Supremacy Clause...

That's a peculiar claim. The whole point of this particular case is that the Tenth Amendment is a part of the Constitution and as such is superior to treaties. That's what the Supremacy Clause means. That is it's "intended meaning".

The alternative would be for all our national treaty partners to have to negotiate treaties with all 50 states separately.

The Constitution explicitly forbids that.

You're dancing around the real issue here: you seem to want the treaty clause to have unlimited scope. Reid vs. Covert makes clear that it doesn't have. There are some things that treaties cannot achieve. There are treaty clauses which cannot be enforced in the US.

And a good thing, too. I don't want some President to sign a treaty with Saudi Arabia which forbids any American woman to go out without being accompanied by a male family member.

That would violate the civil rights of American women -- and even if such a treaty were signed, it couldn't be enforced because the Constitution is superior to treaties.
posted by Steven C. Den Beste at 1:17 PM on August 6, 2008 [1 favorite]


The consulate thing was nothing more than a cynical attempt to save this guy from his well earned fate.

I agree since it did not change any of the facts of the case.

The consulate thing was the merest of technicalities in this case.

However the 6-3 decision established a somewhat novel new reading of the Supremacy Clause.

The justice system should not employ ad-hoc results-based legal reasoning.
posted by yort at 1:19 PM on August 6, 2008


in discussions it's generally a good idea not to be a tool in parsing someone's argument for obviously correctable holes just to sidestep it. cf. my "toolbox" mention above.

This would have been better: "I agree with your point, but Guam is a US territory. You certainly meant to give a foreign country in your statement." Better yet, I just should have let it slip by.

It was snide of me to do that, I agree. But calling someone a tool doesn't raise the level of the discussion here either.
posted by Daddy-O at 1:24 PM on August 6, 2008


Den Beste, I don't see the Xth Amendment referenced anywhere in the majority's ruling.

I don't want some President to sign a treaty with Saudi Arabia which forbids any American woman to go out without being accompanied by a male family member.

Since we can all agree that treaties have the same general standing as legislation, we can all agree that the Senate and President cannot overstep existing constitutional protections when ratifying international treaties.

So this particular counter-argument above is a definite non-starter.

The issue at hand, lest we forget, is foreign citizens enjoying treaty rights of contacting consular officials when arrested.

I simply fail to see any relevance the Xth Amendment has in this case, since one of the main reasons we instituted a Federal system was to regulate the dealings of the Several States with foreign powers.

Additionally, I am of the general opinion that states are only free by the 9th and 10th amendments -- as argued in O'Connor's dissent in the Raich case -- to expand individual liberties and not restrict them.

Texas restricting the rights of foreign citizens' access to their consulate would be a shitty law in controvention to federal law, and would be struck down by the courts thereby.

The issue the SCOTUS majority skated on was that Congress did not add legislation to execute these treaty provisions, which I think Breyer adequately addressed in his dissent.
posted by yort at 1:27 PM on August 6, 2008


And I apologize to anotherpanacea for my snide remark.
posted by Daddy-O at 1:29 PM on August 6, 2008


The treaty in question was not ratified by Texas. I don't see what's "dubious" about a state failing to obey a treaty which it never signed in the first place.

Well, I'm not a lawyer, but my gut instinct suggests that it's "dubious" for the same reason that state and federal laws apply to us individually despite never having explicitly opted in. I never agreed to the law that says I have to wear pants in public, but that won't stop me from getting picked up for indecent exposure in many states. I imagine things get much stickier when we're talking about states' rights and all that.
posted by OverlappingElvis at 1:30 PM on August 6, 2008


Don't mess with Texas. Seriously.
posted by Blazecock Pileon at 1:46 PM on August 6, 2008


I don't want some President to sign a treaty with Saudi Arabia which forbids any American woman to go out without being accompanied by a male family member.

btw, a more interesting counter-argument would be a treaty that forbade female citizens of the KSA from going out unaccompanied here in the US.

btw, Stevens' dissent is IMHO pretty good:
There is a great deal of wisdom in Justice Breyer’s dissent. I agree that the text and history of the Supremacy Clause, as well as this Court’s treaty-related cases, do not support a presumption against self-execution
. . .
One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas’ duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current controversy. Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another.

The decision in Avena merely obligates the United States “to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals,” 2004 I. C. J., at 72, ¶153(9), “with a view to ascertaining” whether the failure to provide proper notice to consular officials “caused actual prejudice to the defendant in the process of administration of criminal justice,” id., at 60, ¶121. The cost to Texas of complying with Avena would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced José Ernesto Medelln. See ante, at 4–6, and n. 1. It is a cost that the State of Oklahoma unhesitatingly assumed.4

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.” Ante, at 28. When the honor of the Nation is balanced against the modest cost of compliance, Texas would do well to recognize that more is at stake than whether judgments of the ICJ, and the principled admonitions of the President of the United States, trump state procedural rules in the absence of implementing legislation.

The Court’s judgment, which I join, does not foreclose further appropriate action by the State of Texas.
posted by yort at 1:48 PM on August 6, 2008


"I don't see what's "dubious" about a state failing to obey a treaty which it never signed in the first place."

The United States signed the treaty. What you're basically saying is that when the United States signs an international treaty, it's completely meaningless and unenforceable. What you're saying is that the signed word of the US is worthless, that every treaty the US ever signed is a bare-faced lie.

I'm sure as usual you have the legal justification to "prove" it but tell me - does this make you feel proud of your country? Do you feel that this is how countries should behave internationally?
posted by lupus_yonderboy at 1:51 PM on August 6, 2008


but my gut instinct suggests that it's "dubious" for the same reason that state and federal laws apply to us individually despite never having explicitly opted in

I'm a little confused by this. Was it a treaty made at the federal level, and if so, doesn't that sort of implicitly require all of the states to act in accord with it?

A dark part of me sort of wishes that he had gotten his chance to speak with the consulate, just so they could have returned a response something like: "Nah, you're a scumbag. Mexico doesn't want you back, so we are going to let the Americans do what they want."
posted by quin at 1:53 PM on August 6, 2008


Well, I'm not a lawyer, but my gut instinct suggests that it's "dubious" for the same reason that state and federal laws apply to us individually despite never having explicitly opted in.
posted by vorfeed at 1:58 PM on August 6, 2008


doh, that was meant to be a quote, but I hit post too quick. At any rate, it's clearly complicated... which is exactly why I think it's not unreasonable to expect Congress to explicitly pass this kind of international laws.
posted by vorfeed at 2:00 PM on August 6, 2008


The United States signed the treaty. What you're basically saying is that when the United States signs an international treaty, it's completely meaningless and unenforceable. What you're saying is that the signed word of the US is worthless, that every treaty the US ever signed is a bare-faced lie.

I know you just love getting all hand-wavy and bashing the U.S.—apparently it's in vogue or something—but treaties need appropriate legislation passed to give them any teeth. That's the way it works in most countries—signing the treaty does not by itself give the treaty the force of law. Just ask Ireland.
posted by oaf at 2:16 PM on August 6, 2008


Was it a treaty made at the federal level, and if so, doesn't that sort of implicitly require all of the states to act in accord with it?

But there are also limits on federal power, and a treaty can't sidestep that.
posted by smackfu at 2:24 PM on August 6, 2008


which is exactly why I think it's not unreasonable to expect Congress to explicitly pass this kind of international laws.

There are two separate issues here. One being the Vienna treaty (of 1963, ratified in 1969) requiring its signers to notify furriners of their right to request assistance from their consulate when charged with a crime. We can all agree, except Den Beste perhaps, that this is a good treaty.

The issue before the court was Avena, in which the UN's ICJ in 2004 ruled that Medillin should enjoy another habeus corpus cycle on the issue of his denied Vienna treaty rights.

Here, a 5-4 (or 6-3, depending how you parse Stevens' concurrence) majority ruled that the ICJ's Avena decision (nor Bush's memorandum of compliance), did not trump the State of Texas's streamlined capital case procedures.

Which I really can't disagree with, since Medellin's lawyers were arguing than any and all ICJ decisions coming down would gain the force of self-execution without further legistlative action.
posted by yort at 2:24 PM on August 6, 2008


It sounds like Mexico doesn't always play nice either. A U.S. Border Patrol agent was held at gunpoint Sunday night by members of the Mexican military who had crossed the border into Arizona, but the soldiers returned to Mexico without incident when backup agents responded to assist.
posted by eatyourlunch at 2:30 PM on August 6, 2008


but treaties need appropriate legislation passed to give them any teeth. That's the way it works in most countries—signing the treaty does not by itself give the treaty the force of law

"Again, under our established precedent, some treaties are self-executing and some are not, depending on the treaty." -- majority opinion in Medellin v. Texas.
posted by yort at 2:30 PM on August 6, 2008


Treaties should have clauses that make it so your signature drops off if your country doesn't actually do anything to follow the terms within a certain timeframe.

Some do; they contain language requiring states that want to be party to the treaty, to implement domestic laws covering the agreed-upon elements of the treaty. (Many of the most egregious copyright treaties are like this.) I'm not sure if they explicitly say that failure to implement within x days constitutes a revocation of ratification (and maybe they should!), but some do explicitly say that party states must pass legislation in a certain amount of time.

Other treaties are "self-executing" if they are designed to essentially become the law once ratified, and don't require further legislation to implement.

I think that the first method (states must create legislation to implement) is considered preferable, or is at least more common, in international treaties, because it allows each state to craft the legislation in ways and with language they find preferable. They just have to cover all the bases specified in the treaty, but aside from that it's up to them to make it airtight. It makes the treaties, presumably, much less complicated to write and agree to among states.

Since self-executing treaties don't require any further legislation, and don't leave as much up to signatory countries, my limited understanding of the topic is that they're more complicated and typically require more negotiation to create, and are more limited in scope.

The problem with the treaty in this case (the Medellin thing) was that it wasn't self-executing (according to SCOTUS), but no implementing legislation had ever been passed. By only passing the treaty but not any legislation, it demonstrated a sort of intent by Congress, but carried no legal weight.

Basically the Supreme Court said, by ruling in the way that they did, that Congress dropped the ball. Future treaties must either be self-executing, or they must be passed and then followed by implementing legislation in order to take effect.

Frankly I don't think this is bad (nor do I think executing Medellin is really bad, not that it matters much; that's not the issue at hand), since it's pretty clear that treaties are used as backdoor lawmaking vehicles from time to time, and I think that's a dangerous vulnerability to allow to continue. If a particular treaty has wide enough support to be ratified, there shouldn't be a problem passing implementing legislation as well -- or alternately, if there's not enough support to pass implementing legislation the right way (through the normal legislative process), then it doesn't deserve to be law, and the U.S. should do the honorable thing and remove itself from the treaty.
posted by Kadin2048 at 2:36 PM on August 6, 2008 [2 favorites]


Hi! Killing people is wrong! Thanks, bye!
posted by turgid dahlia at 2:40 PM on August 6, 2008 [2 favorites]


Future treaties must either be self-executing, or they must be passed and then followed by implementing legislation in order to take effect.

I think we're all confused on this. . . .the Vienna Treaty rights were not in question, the court was deciding on whether the UCJ (and Bush) could force Texas to re-open up its judicial process as Medillin requested.

This would impart the force of law to UCJ judgements. After further review, I agree with the 6-3 majority that this is too broad a power to delegate without explicit authorization in the treaty.

This is an interesting question I think only Stevens out of the 9 got it right.
posted by yort at 2:44 PM on August 6, 2008


The United States signed the treaty. What you're basically saying is that when the United States signs an international treaty, it's completely meaningless and unenforceable.

No, what I'm saying is that when the United States signs a non-self-executing treaty (that is to say, a treaty which would require changes in domestic law), it is not unreasonable to expect that said changes be encoded in the Federal statutes before the states are obligated to treat them as domestic law. The Supreme Court's decision in this case doesn't make treaties "completely meaningless and unenforceable", it simply adds an explicit extra step to the process. It's an implementation question, not a question of whether or not the treaty itself has meaning.

The Vienna Convention itself states that Article 36 "shall be exercised in conformity with the laws and regulations of the receiving State"; as far as the US Supreme Court is concerned, they have interpreted this to mean that treaty implementation happens according to domestic procedure in each signatory nation. This is quite obvious -- not all nations will handle treaty compliance in the same way, because not all nations have the same court system. Ours has separation of powers between the Federal government and the states, which most nations do not have to the same extent; thus, an extra step in the implementation process is not unwarranted.

but tell me - does this make you feel proud of your country? Do you feel that this is how countries should behave internationally?

You mean, do I think countries should behave as sovereign nations internationally? Yes; yes I do.

And yes, this decision does make me feel proud of my country (I'm assuming by this you mean "not ashamed"; I'm not exactly breaking out my SCOTUS champagne or anything. I used it all up celebrating the Heller decision a couple of months ago). I don't see where it is even remotely negative to have some Congressional oversight of international treaties, nor to have them entered into Federal statutes. We Americans (at least, those of us who were awake during Civics class) tend to view extra checks and balances positively.

IMHO, the very best thing that could (and likely will) happen now is for Congress to pass a law which states that foreign nationals in US custody have the right to contact their consulate. et viola, it becomes a simple issue of compliance with domestic law, and there's no more problem.
posted by vorfeed at 2:48 PM on August 6, 2008


some treaties are self-executing and some are not

Yes, if having them be self-executing would violate the Constitution, they're not self-executing even if they say they are.
posted by oaf at 2:48 PM on August 6, 2008


Or what vorfeed said.
posted by oaf at 2:49 PM on August 6, 2008


And I think we can tell from lupus_yonderboy's comment that he isn't proud of his (our) country.
posted by oaf at 2:50 PM on August 6, 2008


And I apologize to anotherpanacea for my snide remark.

It's okay, Daddy-O. I actually meant to choose a US territory for my remark, the point being that the US can sign a treaty with non-state territories, as it has done with Native American nations that exist within its borders, but that precisely because these places are under political control of the executive, Bush would have tremendous power to control the content of that treaty. Basically, I've had this argument before, when SCOTUS granted cert, and I was just shorthanding. Anyway, now we know: treaties need to be ratified and enacted: they're not a legislative shortcut for the executive branch. That's a good thing, even if in this case a murder/rapist had to die to secure our liberty.
posted by anotherpanacea at 2:54 PM on August 6, 2008


One being the Vienna treaty (of 1963, ratified in 1969) requiring its signers to notify furriners of their right to request assistance from their consulate when charged with a crime. We can all agree, except Den Beste perhaps, that this is a good treaty.

That was an unnecessary cheap shot. I have no problem with that treaty -- but in my opinion that's not what this is about.

I think we're all confused on this. . . .the Vienna Treaty rights were not in question, the court was deciding on whether the UCJ (and Bush) could force Texas to re-open up its judicial process as Medillin requested.

This would impart the force of law to UCJ judgements. After further review, I agree with the 6-3 majority that this is too broad a power to delegate without explicit authorization in the treaty.


That is what this is about -- and I wasn't confused about it at all.
posted by Steven C. Den Beste at 3:02 PM on August 6, 2008 [1 favorite]


IMHO, the very best thing that could (and likely will) happen now is for Congress to pass a law which states that foreign nationals in US custody have the right to contact their consulate. et viola, it becomes a simple issue of compliance with domestic law, and there's no more problem.

^
posted by yort at 3:04 PM on August 6, 2008


You mean, do I think countries should behave as sovereign nations internationally? Yes; yes I do.

I'm sorry, I fail to understand how "not honouring treaties you sign" has anything to do with "being a sovereign nation". Given this definition: Sovereignty is the exclusive right to have control over an area of governance, people, or oneself, surely the inability to sign enforceable treaties means that the US is not a sovereign nation?

It seems to me is that you want the individual states of the United States to have the same rights as sovereign nations, with none of the same responsibilities.
posted by lupus_yonderboy at 3:13 PM on August 6, 2008


I'm sorry, I fail to understand how "not honouring treaties you sign" has anything to do with "being a sovereign nation".

As explained above, this has nothing to do with "not honoring treaties," it has to do with Congress passing proper legislation to enforce the treaties, (since the treaty itself is not self-executing,) which Congress has failed to do.

Given this definition: Sovereignty is the exclusive right to have control over an area of governance, people, or oneself, surely the inability to sign enforceable treaties means that the US is not a sovereign nation?

There is no inability to sign enforceable treaties, however, as explained above, this is a non-self-executing treaty, and must have legislation in order to execute.

A rhetorical question, but would prefer that Bush, or any Presidential administration, sign a treaty that has requirements that it be enforced with legislation, then having no legislation enacted, Busy or another administration enforcing the treaty as he sees fit?
posted by Snyder at 4:03 PM on August 6, 2008


it has to do with Congress passing proper legislation to enforce the treaties, (since the treaty itself is not self-executing,) which Congress has failed to do

The issue is a littler subtler than that. 6 out of the 9 parsed the existing treaty language "undertakes to comply" with ICJ judgments as somewhat weak sauce in forcing Texas to re-open Medellin's case as directed by the ICJ. Breyer chose to go to the equally-valid Spanish language of the treaty to parse "compromete a cumplir” as "present obligation to execute" the decisions of the ICJ court as binding, and final.

The ICJ eurocommies in its Avena decision directed the US to reexamine “by means of its own choosing” certain aspects of the relevant state criminal proceedings of 51 cases of Mexican nationals having been denied their Vienna treaty rights.

Breyer argues that precedent is sufficient to "lead to the conclusion that the ICJ judgment before us is enforceable as a matter of domestic law without further legislation".

Indeed, Congress passing legislation telling the Texas judiciary how to proceed smacks me as somewhat inappropriate. ICJ judgments are apparently a case-by-case thing, and as Stevens wrote is about a good a summary as we can get. . .

The majority of Bush v. Gore found no Constitutional problem in telling Florida how to count its votes, IMV this is a similar issue of Federal-level issues trumping states-rights, though of course the issue of an extra-constitutional international court gaining through treaty the power to order state courts around is a very contentious Constitutional issue.
posted by yort at 4:47 PM on August 6, 2008


heh. bizarre, in 2005 the President withdrew the US from being under ICJ oversight for Vienna treaty issues.
posted by yort at 5:02 PM on August 6, 2008


As explained above, this has nothing to do with "not honoring treaties," it has to do with Congress passing proper legislation to enforce the treaties, (since the treaty itself is not self-executing,) which Congress has failed to do.

This makes perfect sense to me. What doesn't make sense is how "states' rights" have anything to do with this...?

I have no problems with, "We signed this treaty, Congress didn't ratify it" or similar things. That's suboptimal but part of democracy. I do have problems with, "The treaty was signed and ratified, but Texas decided it wasn't valid for Texas."

(Rant: I think the idea of "states' rights" is poor - it's just another level of corrupt parasite. The theory is that it protects the individual from the Federal Government but that clearly hasn't worked out. People should go right to the source and be demanding far more accountability and openness from the Feds right off the bat, not relying on their better ability to exploit arcane systems.

(I'm hardly a libertarian - I want the State to be doing a lot more - but they could be spending a lot less of my money to get better results if they weren't robbing us blind from the very top down. More openness, more accountability, fewer levels of "system" - individual rights, not "states' rights".)
posted by lupus_yonderboy at 5:50 PM on August 6, 2008 [1 favorite]


On submission, yort's answer answers many of my questions - there seems to be legal ambiguity at multiple levels, so am I right to think that this case is something of a freak and doesn't really set much of an important precedent (and therefore we can ignore it)?
posted by lupus_yonderboy at 5:53 PM on August 6, 2008


Read the case, and you would kill him with your bare hands.
posted by Senator at 5:54 PM on August 6, 2008


Hey, whatever happened to that American girl with a myspace page who murdered a Brit in Italy?
posted by delmoi at 6:29 PM on August 6, 2008


Read the case, and you would kill him with your bare hands.

With Justice the process is as important as the end.

The heinous particulars of his acts matter not, only that the system does not bend in its judgment based on the facts of the case but on the legal principles involved, for what we think are facts can and do change.

The issues involved here are not evidentiary but procedural. It is actually, normally, a good thing that this basic issue issue is being tested, for if & when it is you enmeshed in this process you will want the procedures to be just and not ad-hoc applied based on the presented facts.
posted by yort at 6:41 PM on August 6, 2008 [1 favorite]


so am I right to think that this case is something of a freak and doesn't really set much of an important precedent

pretty much. This is (substantially; Stevens agreed with the dissent about the self-execution issue) Yet Another 5-4 decision from the Roberts court.
posted by yort at 6:44 PM on August 6, 2008


It would be interesting to compare this case with that of the Matanza de Emilio Gonzalez (sic).
Whose juristiction rules? Sooner or later, this has to be resolved. Mexico has no Death Penalty, IIRC.
-llc
posted by primdehuit at 6:51 PM on August 6, 2008


It seems to me is that you want the individual states of the United States to have the same rights as sovereign nations, with none of the same responsibilities.

No, I want the US, as a sovereign nation, to have the sovereign right to manage its own court system according to its own rules. The Vienna Convention states outright that signatory nations are in charge of treaty implementation, not the ICJ; the only ones here who are looking to give somebody "the same rights as sovereign nations, with none of the same responsibilities" are those who would give the ICJ the power to demand compliance with this international treaty despite violations of existing domestic law and court procedure. It is really worth mentioning again that, had Medellin brought the consulate issue up at his original trial, he'd probably be in Mexico right now. One of the core reasons for the rejection of his treaty-based argument was his violation of Texas court procedure (you can't bring up brand new issues during the appeals process, as appeals apply only to mistakes of law made during the original trial), not the treaty itself. And, again, it says right there in the Convention that treaty implementation "shall be exercised in conformity with the laws and regulations of the receiving State". Thus, if the law says you can't bring it up after the trial, then you can't bring it up after the trial, treaty or not.

This makes perfect sense to me. What doesn't make sense is how "states' rights" have anything to do with this...?

Again, it's because there is a separation of powers in the US justice system. Medellin was arrested, tried, held, and executed by the state of Texas, not by the Federal government. That means state cops, state courts, state prisons, and state executioners. Just as the Feds cannot just wander into City court one day and demand that your littering case be penalized by a thorough wet-fish slapping, they mustn't order the Texas courts to do something unless the Texas courts are violating the constitution or existing Federal law by not doing that thing. This decision hinges on the fact that there was no Federal law which Texas was breaking.

If you really don't get it at this point, I suggest reading up on the US justice system. This and this should do to start.
posted by vorfeed at 7:08 PM on August 6, 2008 [2 favorites]


The system works!
posted by nola at 7:33 PM on August 6, 2008


Legality aside, Texas really ought to have followed the ICJ's ruling, not as an order, but as a suggestion.
posted by Pyry at 7:44 PM on August 6, 2008


are those who would give the ICJ the power to demand compliance with this international treaty despite violations of existing domestic law and court procedure.

this is something of a strawman. The ICJ's remand requested the US reapply its due process procedure to Medellin's case, nothing more.

The minority opinion held that Article 94 was sufficiently self-executing in this case, and that ICJ remands are sometimes, but not necessarily always, binding to the judiciary.

It is really worth mentioning again that, had Medellin brought the consulate issue up at his original trial, he'd probably be in Mexico right now

how so?

One of the core reasons for the rejection of his treaty-based argument was his violation of Texas court procedure (you can't bring up brand new issues during the appeals process, as appeals apply only to mistakes of law made during the original trial)

Breyer disagrees:
Finally, Texas law authorizes a criminal defendant to seek postjudgment review. See Tex. Code Crim. Proc. Ann., Art. 11.071, §5(a)(1) (Vernon Supp. 2006). And Texas law provides for further review where American law provides a “legal basis” that was previously “unavailable.” See Ex parte Medelln, 223 S. W. 3d 315, 352 (Tex. Crim. App. 2006). Thus, I would send this case back to the Texas courts, which must then apply the Avena judgment as binding law.
posted by yort at 7:54 PM on August 6, 2008


The ICJ's remand requested the US reapply its due process procedure to Medellin's case, nothing more.

Yes, that's true. However, when I said "those who would give the ICJ the power to demand compliance", I was referring to lupus_yonderboy's assertions ("the inability to sign enforceable treaties", "The treaty was signed and ratified, but Texas decided it wasn't valid for Texas", etc), not the actions of the ICJ itself. Their request was perfectly legal and perfectly reasonable; it's lupus' expectation that it should be followed even when in conflict with domestic law that's objectionable. IMHO, Texas probably should have been magnanimous with this particular appeal, especially since it probably wouldn't have changed the outcome much by that point, but also IMHO, there's no question that they shouldn't have had to.

how so?

I was exaggerating, and I'll admit it, but I still think Medellin's failure to bring this issue up at the original trial hurt his case. Mexico has shown plenty of willingness to send lawyers in these cases. He'd have had at least a chance of getting out of the death penalty, or at the very least dragging out the appeals process; without the procedural problem, perhaps the Texas supreme court would have gone the other way on this one. Medellin's own state habeus petitions suggest as much... there isn't much point in arguing for a new trial unless you think you can do better the second time.

Breyer disagrees

And the majority doesn't. "Held: Neither Avena nor the President's Memorandum constitutes enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions." Stevens' concurring opinion also mentions it: "Texas would do well to recognize that more is at stake than whether judgments of the ICJ, and the principled admonitions of the President of the United States, trump state procedural rules in the absence of implementing legislation. The Court’s judgment, which I join, does not foreclose further appropriate action by the State of Texas." [emphasis mine]

As for 'Texas law provides for further review where American law provides a “legal basis” that was previously “unavailable.”', this seems as if it would merely lead to the same questions as to whether or not ICJ judgments such as Avena count as legal basis in American law.
posted by vorfeed at 8:48 PM on August 6, 2008


I love how we insist on focusing on the perpetrator, essentially making him the new victim. We rave and revolt against one another, throwing legal fact and tacit opinion back and forth, completely mired in the discussion of his rights. Its as if the real victims and their rights forever disappeared when they were first assaulted, so many years ago.

I'll bet those two girls would have liked the chance to talk to their consul before being gang raped and strangled to death, but we didn't give them that luxury, did we?
posted by allkindsoftime at 2:52 AM on August 7, 2008


Justice didn't do enough to protect his victims, and Justice was not served by his execution.

If you want to be against the death penalty, then you need to make more money, pay more taxes, and get more cops on the street. Otherwise homicidal psychopaths will continue to commit atrocities that so violate the sensibilities of voters that these voters will continue to demand the execution of homicidal psychopaths.

When criminal acts sink to a level of complete inhumanity it is no longer reasonable to treat the criminals as human. We must either prevent these crimes or reduce their frequency to the point where social regret exceeds social loathing. Otherwise, opposition to the death penalty is nothing more than protesting a war we fight on our own soil against an invading force.

P.S. Don't go to other countries and commit crimes.
posted by ewkpates at 4:53 AM on August 7, 2008


I'll bet those two girls would have liked the chance to talk to their consul before being gang raped and strangled to death, but we didn't give them that luxury, did we?

If the legal process is broken, we can't trust it to distinguish guilt from innocence this time, next time, or ever. Access to council is part of that. Especially so in a death penalty case.

You may find yourself in a similar situation within another country's system, one day, wishing you had rights that are no longer afforded you, because the US decided not to grant those rights itself.
posted by Blazecock Pileon at 8:53 AM on August 7, 2008


Two points which have previously been mentioned but still seem underemphasized:

1) Medellin and his attorneys both failed to ask for access to consulate services. It is long-established precedent in the United States, on both state and federal levels, that if you fail to raise an issue during trial, you cannot succeed on appeal based on that issue.

This rule may seem harsh, but it is designed to prevent abuse of the judicial system. A clever defendant could deliberately fail to assert his rights or object to errors and then appeal those issues one by one, dragging out the already over-long judicial process for years.

If SCOTUS had ruled the other way, every single Mexican national would be able to sit through their trial without asking for consulate services and then overturn that trial on appeal by asserting that right after the fact. This is a terrible idea, and courts on every level are sensitive to ploys calculated to waste their time.

2) Though the Tenth Amendment is clearly relevant, the Amendment itself is viewed as having little real legal effect these days. It's rarely cited in any judicial opinions, and Congress acts as if it has no real teeth. But the Supreme Court will not allow Congress and the President to enact laws which the Constitution does not empower them to enact by using the Treaty Power. Essentially, if Congress lacks the competence to enact a particular law, it also lacks the competence to enact similar measures via treaty.

This is also a very good idea. One can imagine numerous things which the international community would like Congress to do, many of which Congress really wouldn't mind doing when it comes right down to it. For example, the EU's Audiovisual Media Services Directive imposes massive restraints on commercial programming, including a prohibition on anything which "encourages behavior grossly predjudicial to the environment" or "causes moral or physical detriment to minors." I can completely imagine a Democratic Congress wanting to pass the former measure and a Republican Congress wanting to pass the latter. Fortunately, the First Amendment prevents any such measures, and sticking such a provision into something like NAFTA or GATT wouldn't make it any more legal.

Returning to the subject at hand, there has never been any question that congressional authority over state courts has always been highly limited. While it may technically be within federal authority to require the states to provide access to consulate services, it is not within federal authority to order states to reopen cases which have been closed without any irregularities. The operation of a judicial system is very close to the essence of sovereignty, and the states and the federal government share sovereignty the arrangement known as "federalism."

This does not jeopardize other treaties to which the federal government is party. All nations need to be on notice that the United States federal government is a government of limited and enumerated powers and they should not expect any treaty which exceeds those powers to be obeyed or enforced.
posted by valkyryn at 10:24 AM on August 7, 2008 [2 favorites]


Medellin and his attorneys both failed to ask for access to consulate services. It is long-established precedent in the United States, on both state and federal levels, that if you fail to raise an issue during trial, you cannot succeed on appeal based on that issue.

Thing is, the treaty says the US is obligated to inform arrestees of their right to request assistance from their consulate. Texas broke this treaty agreement.

It's some pretty good Catch-22 juju to say 'oops, we didn't tell you of a right and now you discovered you actually had that right too bad so sad!'

If SCOTUS had ruled the other way, every single Mexican national would be able to sit through their trial without asking for consulate services

ah, here we see your confusion. Texas only failed in its treaty obligation to inform Medellin of his rights. This is very similar to failing to do the Miranda thing IMO.

and then overturn that trial on appeal by asserting that right after the fact

Remanding for habeus corpus review on procedural matters is not "overturning" trials

All nations need to be on notice that the United States federal government is a government of limited and enumerated powers and they should not expect any treaty which exceeds those powers to be obeyed or enforced.

So sayeth the Federalist Society.

As I said above, I think regulating the Several States' treatment of foreign nationals should be and is a constitutional power of the Congress. IANACL, but the 14th Amendment might even apply here.
posted by yort at 10:55 AM on August 7, 2008


Remanding for habeus corpus review on procedural matters is not "overturning" trials

It most certainly is. That's the whole point of federal habeas review of state court decisions: you either get a new trial or a new sentence. That's the only remedy a habeas petition can offer. Cases are not "remanded for habeas corpus review." That's not how it works. When court receives a habeas petition, it evaluates the merits of the petition by going over the record in detail. If it finds no error, or if it finds that the error is "harmless," i.e. the case would have come out the same way regardless, the petition is denied. If it finds reversible error in the trial proceedings, the trial is vacated and a retrial ordered. If it finds no error in the trial itself but does find reversible error in the sentencing, the sentence is vacated and the trial court is instructed to redo the sentencing.

I don't know what you think the habeas process involves, but that's what happens. There is no grant of habeas relief without vacating a trial court's action.

I think regulating the Several States' treatment of foreign nationals should be and is a constitutional power of the Congress.

I know you said that, but there doesn't seem to be any reason from the text of the Constitution or any relevant case law to believe that you're right. Other than ambassadors and others granted diplomatic immunity, jurisdiction over which is reserved for the federal judiciary exclusively, the Constitution grants foreign nationals no rights not granted to US citizens, nor does it empower Congress with any authority to grant such. You're free to propose a constitutional amendment, but you are not free to amend the Constitution by treaty.

IANACL,

Clearly. Kidding!

but the 14th Amendment might even apply here.

Neither the Court nor either party seemed to think so, as it is not at all mentioned in the decision. For the 14th Amendment to do what you want it to, the Court would have to interpret "due process" as requiring access to consular services. The Court has apparently decided that it does not, or, at least, failed to decide that it does, which amounts to the same thing. The United States federal government may indeed be bound to notify its defendants of their right to consular services, but the fact that it is required does not mean that it is a critical componant of due process. States are largely free to develop their own criminal procedure, and the fact that something happens on the federal level does not automatically mean that it must happen on the state level. Ergo, no violation of the 14th Amendment.

Currently, "due process" is defined entirely by the Court. Congress has never passed a law which defines the term with any rigor (and there are good reasons for this, but that would take us pretty far afield). If Congress wants to set down a precise definition of "due process" which includes consular access, it must pass a law, using bicameralism and presentment, and see whether it passes constitutional muster (which it might, though I wouldn't bet on it, as the Constitution doesn't seem to give them the authority to do this, treaty or no). As it has not, it may not insist, by resorting to the treaty power, that the Court change its legal conclusions. A treaty which purports to amend the Court's interpretation of the Constitution is invalid: we wouldn't let the political branches mess with the First Amendment this way either. Just as the political branches may not aggrandize themselves at the expense of the states by abuse of the treaty power, neither may they aggrandize themselves at the expense of the judiciary.
posted by valkyryn at 12:01 PM on August 7, 2008


Neither the Court nor either party seemed to think so, as it is not at all mentioned in the decision. For the 14th Amendment to do what you want it to, the Court would have to interpret "due process" as requiring access to consular services.

I was thinking more of the "equal protection" rather than due process:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I agree that this case arguments did not apparently go anywhere near the 14th equal protection, which I find awfully confusing since the plain text reading of the above implies to me that the Vienna treaty rights of foreigners -- of the same power as Federal law -- in Texas were infringed upon by Texas (and several other states).

Then again this case really wasn't about the Vienna treaty rights but about allowing a precedent of forcing a state to follow directions from a furrign court. It is interesting that this particular issue is a dead-letter now that Bush has removed the US from the Optional Protocol that got us into this mess of allowing Vienna Treaty infractions to be sent to the ICJ.

The Court has apparently decided that it does not, or, at least, failed to decide that it does, which amounts to the same thing.

I really couldn't care less what the present Roberts court decides with 5-4 majorities, since my respect for several of the sitting justices can't fill a thimble.

I'm here for the theory, and the arguments each side employs to reach their theories.

IMO the majority punted self-execution of the ICJ treaty "undertake to comply with" wording.

Breyer argued it was sufficiently powerful to require the Feds to remand the state of Texas to reopen the process, at least in this case. He offered a multi-headed argument in support of this, but the majority decided that was a can of worms and passed.

Breyer's opinion stated that there wasn't obvious cause to throw out the verdict, so I still do not follow your statement that allowing another round of appeals would "overturn" the decision.
posted by yort at 2:11 PM on August 7, 2008


I was living in Houston when this crime happened and it made a pretty deep impression on me. I'll leave the appeal issues alone, although I agree that they are significant.

Houston had more than its share of violent crime in the 90s and the local media focused on it relentlessly. One of the most well advertised local news segments was, 'City Under Seige'. These murders sparked more outrage than a cop killing. It was the first major felony where victims addressed the perpetrators after the finding of guilt. Justice For All is one of the more strident victim's rights organizations and this crime was a major catalysts of their growth. Public outrage was funneled into passing a law that allowed the families of murder victims to witness executions. Both options, addressing the perpetrator in court and witnessing the execution, are now frequently exercised by victim's families. Houston has always been a city with a strong emphasis on law and order where the D.A.'s office ardently pursuing stiff sentences. This is most evident in cases where the defendant is eligible for the death penalty. Harris county (Houston) has far more residents on Death Row than any other county. Houston is the most populous city, but this isn't entirely due to population. Despite that long standing disposition, I believe that criminal justice in Harris county became even more punitive after these murders.

Even though I strongly believe that each of us is more than the worst thing we've ever done, it's difficult to find sympathy for the criminals. This was as brutal and vicious of a crime as any I've read about. It's haunted me since reading about it. Still, one of the perpetrators was 14 and far less active than the rest. While he protested at the assault, he did rape one of the girls. He was taken from the juvenile system, where he was a model inmate and could have stayed until 21, and pushed directly into an adult maximum security prison at the age of 18 to begin serving a sentence of 40 years. And this statement from one of the girl's fathers in 96 or 97 has haunted me as well, "I'll look forward to him catching AIDS in prison and dying. I am happy again."
posted by BigSky at 2:35 PM on August 7, 2008


son of a bitch needed killing and he got it
posted by Iron Rat at 7:00 PM on August 7, 2008


I really couldn't care less what the present Roberts court decides with 5-4 majorities, since my respect for several of the sitting justices can't fill a thimble.

I'm here for the theory, and the arguments each side employs to reach their theories.


Then let's get down to theory. The most fundamental theory is this: When the Supreme Court of the United States rules on a case, the majority is right and the minority is wrong.

That's the rules of the game. Even if it's a 5-4 decision, the majority is right and the minority is wrong.

Therefore, since Breyer was in the minority on this decision, what Breyer said was wrong. And constantly quoting him and citing him is a waste of time.

It doesn't matter what Breyer thinks, because he was in the minority, and the minority is wrong. It doesn't matter how he justified his position. None of that matters.

If you want to find out what the law is, then read the majority opinion, because the majority opinion is right and that's the law.
posted by Steven C. Den Beste at 10:45 PM on August 7, 2008


yort though why the Court and parties failed to investigate the due process issue is beyond me--though it's probably because everyone knew it wasn't a winning argument--equal protection isn't even in the same ballpark as this case. Due process is about the process used in criminal proceedings, from investigation to arrest to interrogation to trial and sentencing. That was at least arguably the issue here. Equal protection is about discriminatory intent in laws on the books, i.e. school segregation, Jim Crow laws, gender discrimination, etc. In other words, equal protection is about discriminatory laws, and due process is about discriminatory enforcement of laws. Critics have argued that equal protection should be expanded to include laws which have a discriminatory impact, not just those with discriminatory intent, but 1) this argument has failed to capture the judicial imagination for more than 30 years, and 2) Texas has passed no law denying access to consular services, so there isn't even an argument. You're just way off base.

And drop the posturing about "the Roberts' Court." This past term saw very few 5-4 decisions, many of which defied ideological categorization. Many were 6-3 or 7-2. Not having respect for Justices of the United States Supreme Court tells me that not only are you not a constitutional lawyer, you probably aren't part of the legal profession at all. Say what you like about them, disagree with them if you must, they're all incredibly qualified and wicked smart. I know several people who have worked for various Justices in the past, and from all reports they're all pretty decent human beings too.
posted by valkyryn at 5:07 AM on August 8, 2008


The most fundamental theory is this: When the Supreme Court of the United States rules on a case, the majority is right and the minority is wrong.

The nice man on the $20 disagrees with you.
posted by oaf at 7:54 AM on August 8, 2008


To state that 5 members -- Scalia and his two clones are necessarily correct is simply an appeal-to-authority fallacy.

5-4 decisions have been shown to be weak precedents, and the fact that judges bring up past DISSENTING arguments in their present arguments just shows how full of shit you are, as usual, SCDB.
posted by yort at 9:51 PM on August 8, 2008


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