Supreme Court inserts head up ass over treaty obligations

Yesterday, the Supreme Court threw our entire diplomatic corps, the State Department, and possibly every treaty the U.S. has ever signed that is still in force, into complete disarray. And in the process, the Court may have inflicted more harm to our national authority and international standing than anything President Bush II has done to date, including invading Iraq. And that harm may turn out to have fantastic reach and duration if Congress and the President don’t immediately step in to rectify the Court’s gross error.

The Supreme Court essentially invalidated an international treaty by blocking federal enforcement of the treaty’s obligations.

First, a little background. The Vienna Convention on Consular Relations insists that foreign nationals be provided consular access if they’re charged with a crime that could bring the death penalty. And even though Bush has withdrawn the U.S. from this part of the treaty (while still demanding that our citizens be granted similar rights, nonetheless), he sought to force the state of Texas to comply with the treaty regarding a Mexican national who confessed to the rape and murder of two teenage girls. Texas refused and, yesterday, the Supreme Court sided with the state of Texas.

On the surface, this is a rebuke to the Bush Administration and a victory for “states rights”, and in fact most media outlets are playing these aspects up. The Washington Post opened their story with “The Supreme Court yesterday issued a broad ruling limiting presidential power and the reach of international treaties, saying neither President Bush nor the World Court has the authority to order a Texas court to reopen a death penalty case involving a foreign national.” The Post doesn’t even mention the diplomatic fallout from the story, focusing entirely on the domestic side of the decision. The New York Times did a little better in addressing the international ramifications by quoting from the dissenter’s opinion:

In a dissenting opinion, Justice Stephen G. Breyer disagreed with that interpretation. He also said the majority had set too rigid a formula for deciding whether treaties were “self-executing.” He warned that the decision threatened to destabilize the country’s relations with treaty partners under dozens of pacts.

As a result of the decision, Justice Breyer said, “the nation may well break its word even though the president seeks to live up to that word and Congress has done nothing to suggest the contrary.”

NPR’s Supreme Court reporter, Nina Totenberg, covered the diplomatic side of this decision the best in her story.

Yale Law School Dean Harold Koh, who served as a State Department official in the Clinton administration, said the decision would create havoc in diplomatic circles for some time to come.

“If our international allies have no assurance that we’re actually going to keep our word, then they have much less incentive to keep their word when they’re being obliged to do something,” he said….

Temple law professor Duncan Hollis, an expert on international law, said that nonetheless, Tuesday’s ruling will have practical consequences. Because enforcement of some existing treaties may now be in doubt, negotiations over future treaties could be more difficult, he said, with general assurances of enforcement failing to suffice.

Until yesterday, the President’s authority to enforce our treaty obligations was largely unquestioned. Today, however, that’s no longer the case. Now the President needs to negotiate and sign a treaty, the Senate needs to ratify it, and then the entire Congress needs to pass explicit enforcement legislation in order to implement the very directive of U.S. Constitution:

All Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…

Justices Roberts, Scalia, Thomas, Alito, Kennedy, and, amazingly enough, Justice Stevens – it’s obvious what your problem is.

6 replies »

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  3. There is a good amount of hyperbole in Mr. Koh’s – or any other member of State – with regard to the impact this will have on our diplomatic activities. To put this in some perspective, look at what Mexico would have to have been negotiating for.

    When a Mexican citizen is in the United States, commits rape and murder, is made aware of his rights to counsel and to remain silent, is thereafter tried and convicted. Fails to raise his Vienna Convention claim – if a person requests, his consular post is to be informed of his detention and inform the person of his right to request assistance from the consul of his own state – at trial or on direct review. Then, during a collateral attack on the validity of his conviction, he raises the issue. After he was provided with the assistance of consulate counsel during his first application for state postconviction relief, but failed to raise his Vienna Convention claim during that proceeding. And, he failed to show that non-notification of the Mexican authorities impacted on the validity of this conviction or punishment. Then, the United States must , pursuant to a ruling by the International Court of Justice – “provide, by means of its own choosing, review and reconsideration of the conviction and sentence”

    It is extraordinarily unlikely this is what Mexico was negotiating for.

    Further, the Vienna Convention requires a arresting county to inform the consular post of the accused’s country within 3 days. Medellin gave a written detailed confession only a few hours after being arrested. Under the Convention the accused must request that his consular post be contacted. Medellin did not make this request. Moreover, Medellin was provided with consulate counsel during his first appeal. Where is the violation?

    Just some perspective.

    yojoe out

  4. The “non-self-executing” treaty matter is not just something the majority invented. Its tone and reach, see Stevens concurring is troubling, and I lean toward Breyer here, but that too adds some perspective here.

    As to the comment as to what is being asked here, it also must be noted that a principle was held here. It applies across the board, not just with facts like these.

    Finally, as to Medelin himself (and many others were not informed), (1) unlike Miranda, this provision is not exactly known by your typical defendant, most likely (2) the violation matters most at the beginning, surely during the trial, where it very well might have some more significance than on appellate or collateral review.

    Added perspective. This case does suggest the different levels of bad here. Bush “loses” but it is a Pyrric victory.