New meaning to "Executive Order"
Suddenly and without warning, President Bush has decided to start opposing executions of convicted murderers. Um, dude, the ship has kind of sailed on that whole hope of making the Mexicans like you thing. And it's a little late to try and pretend you understand the meaning of clemency. So what is this really about?
Oh, yes, I should have seen this coming:
Ted Cruz, the Texas solicitor general, said the administration's position would "allow the president to set aside any state law the president believes is inconvenient to international comity."
Yes, we do so like to ignore inconvenient laws with little to no justification.
The case itself presents interesting but terribly confusing issues of international law and comity, issues SO confusing that I can't even be bothered to try and wrap my head around them all. But, you have fun with that if it's your thing--here's the Scotuswiki page for the case.
Despite my opposition to the death penalty, I do have a fundamental problem with the notion that if someone is in this country illegally and kills an American citizen and is arrested by US law enforcement, that we have an obligation to give them access to their country's consulate to assist with getting them out of US prosecution. Those who suffered through first year Civil Procedure (yes so I do have occasion to talk about such things with a first year law student now...shut up) will recall the concept of "purposeful availment." Basically, you can't do business in or utilize the laws of a particular state to your benefit and then try to evade personal jurisdiction if you get sued for your activities there. Along those same lines, my gut tells me that if you come into the US and kill some of our folks, it's pretty bogus to try to argue that you should be tried under the laws of your own country, particularly if the laws of your own country are lax and may result in you being out in a few years and able to slip back into the US to kill more of our folks. Maybe that's just me thinking worst case scenario, but that's my initial reaction to this case.
Anyhow, this case should be an interesting one to watch because it is surprising that an administration so opposed to the notion of international law having any power over United States criminal justice would actually take the position that Texas should be forced to abide by the judgment of the International Court of Justice in this case. Something must be afoot for that to be true. I think the quote from the Texas AG above pretty much says it all. And that's scary.
6 comments:
This case is actually pretty simple.
1) The United States is signatory to the Vienna Convention on Consular Relations, which requires a foreign national detained by a signatory to be told that they have the right to contact a consular officer from their home country.
2) When I say "signatory," I mean "2/3 of the Senate ratified it, as per Article II, Section 2."
3) The Supremacy Clause, Article VI (2d paragraph) states that "all treaties made . . . shall be the supreme law of the land."
Now, while the Supreme Court has determined that this treaty does not require an exclusionary rule or an exception to procedural default, the Supreme Court has held that this treaty is the law of the land, and therefore means something...
Ok, the specifics of the remedy and the procedural posture are a little wacky. But this isn't Bush just going nuts...this is Bush going nuts with 2/3 of the Senate behind him, which has to mean a little more.
But apparently Bush doesn't want these same procedural safeguards to apply to individuals in federal custody in, say, Gitmo even though the federal government, not the states, is who ratified the treaty. So why is it OK for him to say that the states have to follow it but his own government does not?
I also just have a really fundamental problem with the notion that it matters if the death penalty is available in the accused's home country. Who the fuck cares? They didn't commit their alleged crime in that country, they committed it here and therefore the only thing that matters is what is legal and constitutional in this country. So what the hell is the consulate even going to do about it other than perhaps be able to coordinate involvement of friends and family back home to help with obtaining legal representation or say their goodbyes?
The treaty requires that a consular post be notified if a national is detained inside its consular district. Unless the US has allowed consulates to be established on Guantanamo, which I doubt, then the treaty does not apply.
I don't see how the death penalty in the home country applies to anything, either...and it isn't mentioned in petitioner's brief, either, so obviously they don't think it applies to anything. With one limited exception, that Mexico gives more legal assistance to Mexican nationals facing a capital charge:
"At the time Mr. Medellín was arrested and tried, Mexican consular officers routinely assisted capital defendants by providing funding for experts and investigators, gathering mitigating evidence, acting as a liaison with Spanish-speaking family members, and most importantly, ensuring that Mexican nationals were represented by competent and experienced defense counsel." (n.5 from petitioner's brief).
Yeah, well like I said I didn't care enough to wade through the briefs. The article I linked to seemed to place certain importance on the unavailability of the death penalty in Mexico and I know that generally in cases involving illegal immigrants on death row in the US their home countries often lobby for clemency when they do not have the death penalty themselves. And that is what I was responding to and blathering about.
Mighty convenient there that by holding prisoners in a place with no consulate, the US doesn't have to give them access to their consuls, huh?
"Mighty convenient there that by holding prisoners in a place with no consulate, the US doesn't have to give them access to their consuls, huh?"
It's pretty sweet.
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