Thursday, March 17, 2005
An Interesting Case Before SCOTUS Next Week
For those of you that have not been following this case, Medellin v. Dretke, 371 F.3d 27 (5th Cir. 2004), which will be heard next week by the Supreme Court it raises several profound issues from federalism, international law, and the scope of presidential powers. Nevertheless, it may not result in a decision on the merits at all, at least not at this time.
As you may know the United States is a signatory of the Vienna Convention on Consular Relations. Pursuant to Article 36 of the Convention, each signatory nation bound itself to recognize the rights of consular officials of other nations to protect their nationals who are detained in its criminal justice system, by promising to inform each such national of his rights under the Convention, including the right to have his consulate informed of his detention and to contact consular officers. The consulate then could assist these people as they face the processes of investigation, indictment or charge, trial, and execution of sentence. In addition, the United States also "drafted" and convinced countries to become members of the Optional Protocol of the Convention, which grants the International Court of Justice (ICJ or World Court) compulsory jurisdiction to resolve disputed interpretations of the Convention.
This case involves a foreign national, Medellin, who along with 51 others have found themselves in the center of a international legal quagmire. The typical situation appears to be as follows, as foreign nationals wind up in U. S. prisons, many of them on the death rows of many States, their home countries, usually long after their trials and convictions and sentencing, and thus long after defendants had to have raised their rights under the Convention or be procedurally barred, have sought to compel U.S. courts to observe the Convention and to review convictions and sentences in the absence of the defendants having been informed of their rights. The U.S. Supreme Court has, to date, exhibited very little concern for U. S. treaty obligations. For example, when a Paraguayan national and his Government sought collateral relief, without hearing oral argument and in a matter of hours the Court peremptorily denied relief, exalting procedural bar rules and springing the Eleventh Amendment on foreign States. See Breard v. Greene, 523 U.S. 371 (1998). Subsequent efforts have thus far been met by similar denials of cert. Finally, it appears that the foreign nations wised up and went to the ICJ for rulings that the state and federal courts were misinterpreting their obligations under the Convention.
The first efforts before the ICJ were frustrated by the States rushing to execute these people before the ICJ could do anything, even though the World Court requested stays of execution pending adjudication. Finally, in the Avena decision in March of 2004, the ICJ held that the U.S. had breached parts of the Convention in the cases of 52 Mexican nationals by failing to inform them of their rights, failing to notify Mexican consulates, and failing to give them any relief through use of procedural bar rules. The named party in this case, Medellin, sought federal habeas relief, which was denied by the Fifth Circuit. The Fifth Circuit's ruling appears to be entirely sensible and based on the rationale that while the Supreme Court might conceivably change in mind in light of Avena, the circuit was nevertheless bound by the Breard decision. The case was appealed and the Supreme Court granted review, raising the central question of whether a U.S. court was bound to apply the Avena decision, despite contrary state and federal statutory law.
Despite the fact that the Constitution's Supremacy Clause, Article VI, cl. 2, makes treaties, just like the Constitution itself and federal statutes, "the supreme law of the land" and binds judges in every State to observe this law, regardless of any thing contrary in state law, it appears that most state officers have failed to implement the requirements of the Convention, most likely as a result of ignorance as to its requirements. Although the United States Government has proclaimed itself committed to seeing that our obligations are met, the most that it has done up to now is to plead with the States to become compliant.
Of course this is where things get really interesting, the Bush Administration, as a result of the legal wrangling, has been placed in a bind; on the one hand is its obligation to faithfully follow its obligations under the Convention and the Optional Protocol; on the other is its general denial of its international responsibilities, its law-and-order credentials, and the fuss that would accompany its agreement that an ICJ decision could bind state courts. Initially the Administration filed a brief before the Court announcing that the President had issued a directive under which he purported to compel the state courts to afford these 52 Mexican nationals, and only these 52, some kind of consideration as a matter of comity. Naturally, Texas officials - Medillen was convicted in Texas and is on death row there - as well as other State officials cried foul and responded that the President was not about to tell them what they were going to do and besides he doesn't have the Constitutional authority to do so.
And if that wasn't enough, the Administration last week announced that it was withdrawing from the Optional Protocol. The ICJ was not going to get another chance to adjudicate what our obligations are under the treaty. The usual rule, however, is that a Nation’s ability to withdraw from a treaty is to be discerned in the treaty. But the Convention and the Protocol have no provision for withdrawal. The Vienna Convention on the Law of Treaties has several provisions on withdrawals, one of which is that absent a specific provision in a treaty, a Nation may denounce or withdraw from a treaty only after giving not less than twelve months notice of its intention. Now, the U. S. is not a signatory of the Vienna Convention of the Law of Treaties, but it is generally recognized, as "customary international law," a troubling proposition to be sure, but one that even we appear to accept.
What is critical is what is the meaning of all this on the Medellin case before the Court. Texas is trumpeting that it doesn’t care what the President says. At the same time Medellin has filed a request with the Court that it stay action on the case until he has had a chance to present his case, with the new circumstances, to the Texas courts. It is likely that Administration would really like the Court to dismiss the cert. grant as moot or improvidently granted, and it is likely that the situation has changed so much that the Court should not argue it or decide anything. The Court should adopt Medellin’s motion to stay the case while he attempts to obtain relief in Texas courts. He will no doubt be rebuffed, and in my opinion rightly so, but that would appear to pave the way for the Court to take up the case, perhaps with added briefing on the efficacy of the presidential directive, which also appears to me to run afoul of the Constitution. In its latest filing with the Court, Texas requests the Court deny Medellin’s motion and go ahead to hear the case and decide the issue presented, while Texas argues strongly that the President does not have the authority he claims.
A legal quandary to be sure and something to definitely keep an eye on in the next few weeks.
As you may know the United States is a signatory of the Vienna Convention on Consular Relations. Pursuant to Article 36 of the Convention, each signatory nation bound itself to recognize the rights of consular officials of other nations to protect their nationals who are detained in its criminal justice system, by promising to inform each such national of his rights under the Convention, including the right to have his consulate informed of his detention and to contact consular officers. The consulate then could assist these people as they face the processes of investigation, indictment or charge, trial, and execution of sentence. In addition, the United States also "drafted" and convinced countries to become members of the Optional Protocol of the Convention, which grants the International Court of Justice (ICJ or World Court) compulsory jurisdiction to resolve disputed interpretations of the Convention.
This case involves a foreign national, Medellin, who along with 51 others have found themselves in the center of a international legal quagmire. The typical situation appears to be as follows, as foreign nationals wind up in U. S. prisons, many of them on the death rows of many States, their home countries, usually long after their trials and convictions and sentencing, and thus long after defendants had to have raised their rights under the Convention or be procedurally barred, have sought to compel U.S. courts to observe the Convention and to review convictions and sentences in the absence of the defendants having been informed of their rights. The U.S. Supreme Court has, to date, exhibited very little concern for U. S. treaty obligations. For example, when a Paraguayan national and his Government sought collateral relief, without hearing oral argument and in a matter of hours the Court peremptorily denied relief, exalting procedural bar rules and springing the Eleventh Amendment on foreign States. See Breard v. Greene, 523 U.S. 371 (1998). Subsequent efforts have thus far been met by similar denials of cert. Finally, it appears that the foreign nations wised up and went to the ICJ for rulings that the state and federal courts were misinterpreting their obligations under the Convention.
The first efforts before the ICJ were frustrated by the States rushing to execute these people before the ICJ could do anything, even though the World Court requested stays of execution pending adjudication. Finally, in the Avena decision in March of 2004, the ICJ held that the U.S. had breached parts of the Convention in the cases of 52 Mexican nationals by failing to inform them of their rights, failing to notify Mexican consulates, and failing to give them any relief through use of procedural bar rules. The named party in this case, Medellin, sought federal habeas relief, which was denied by the Fifth Circuit. The Fifth Circuit's ruling appears to be entirely sensible and based on the rationale that while the Supreme Court might conceivably change in mind in light of Avena, the circuit was nevertheless bound by the Breard decision. The case was appealed and the Supreme Court granted review, raising the central question of whether a U.S. court was bound to apply the Avena decision, despite contrary state and federal statutory law.
Despite the fact that the Constitution's Supremacy Clause, Article VI, cl. 2, makes treaties, just like the Constitution itself and federal statutes, "the supreme law of the land" and binds judges in every State to observe this law, regardless of any thing contrary in state law, it appears that most state officers have failed to implement the requirements of the Convention, most likely as a result of ignorance as to its requirements. Although the United States Government has proclaimed itself committed to seeing that our obligations are met, the most that it has done up to now is to plead with the States to become compliant.
Of course this is where things get really interesting, the Bush Administration, as a result of the legal wrangling, has been placed in a bind; on the one hand is its obligation to faithfully follow its obligations under the Convention and the Optional Protocol; on the other is its general denial of its international responsibilities, its law-and-order credentials, and the fuss that would accompany its agreement that an ICJ decision could bind state courts. Initially the Administration filed a brief before the Court announcing that the President had issued a directive under which he purported to compel the state courts to afford these 52 Mexican nationals, and only these 52, some kind of consideration as a matter of comity. Naturally, Texas officials - Medillen was convicted in Texas and is on death row there - as well as other State officials cried foul and responded that the President was not about to tell them what they were going to do and besides he doesn't have the Constitutional authority to do so.
And if that wasn't enough, the Administration last week announced that it was withdrawing from the Optional Protocol. The ICJ was not going to get another chance to adjudicate what our obligations are under the treaty. The usual rule, however, is that a Nation’s ability to withdraw from a treaty is to be discerned in the treaty. But the Convention and the Protocol have no provision for withdrawal. The Vienna Convention on the Law of Treaties has several provisions on withdrawals, one of which is that absent a specific provision in a treaty, a Nation may denounce or withdraw from a treaty only after giving not less than twelve months notice of its intention. Now, the U. S. is not a signatory of the Vienna Convention of the Law of Treaties, but it is generally recognized, as "customary international law," a troubling proposition to be sure, but one that even we appear to accept.
What is critical is what is the meaning of all this on the Medellin case before the Court. Texas is trumpeting that it doesn’t care what the President says. At the same time Medellin has filed a request with the Court that it stay action on the case until he has had a chance to present his case, with the new circumstances, to the Texas courts. It is likely that Administration would really like the Court to dismiss the cert. grant as moot or improvidently granted, and it is likely that the situation has changed so much that the Court should not argue it or decide anything. The Court should adopt Medellin’s motion to stay the case while he attempts to obtain relief in Texas courts. He will no doubt be rebuffed, and in my opinion rightly so, but that would appear to pave the way for the Court to take up the case, perhaps with added briefing on the efficacy of the presidential directive, which also appears to me to run afoul of the Constitution. In its latest filing with the Court, Texas requests the Court deny Medellin’s motion and go ahead to hear the case and decide the issue presented, while Texas argues strongly that the President does not have the authority he claims.
A legal quandary to be sure and something to definitely keep an eye on in the next few weeks.
# posted by mouldfan : 9:58 AM
