Medellin Discussion Board: The Ball is In Congress’s Court
This post is part of our Discussion Board regarding the Court’s decision in Medellin v. Texas. The following entry is by Kent Scheidegger of the Criminal Justice Legal Foundation. He filed an amicus brief in support of Texas, on behalf of that organization and Randy and Sandra Ertman. This entry is cross-posted at the blog “Crime & Consequences” here.
Despite all the wailing and gnashing of teeth over the Supreme Court’s decision in Medellin v. Texas, the holding is not all that remarkable. It has long been established that not all treaties are self-executing, and the Court held that the ones at issue here are not based on their own language. Where adherence to a treaty is contrary to a statute, the President cannot override the statute unilaterally, but legislation is required. Far from making America a rogue nation, placement of the responsibility for treaty compliance in the political branches and not the judiciary is quite common in the world.
So the ball is squarely in Congress’s court. The United States, of course, should live up to its treaty commitments. What would a congressional implementation of International Court of Justice’s decision in Avena look like? It should go as far as our treaty obligations require and not a nanometer further.First, it should be limited to the 50 or so cases at issue in Avena and not yet otherwise resolved. For all others, the holding in the Bustillo portion of Sanchez-Llamas is and should remain the law.
Second, under the Avena decision, use at trial of a statement taken within a few days of arrest, before notification of the consulate became overdue, was not obtained in violation of the Vienna Convention and is not a ground for a claim.
Third, once any American court at any time has heard the claim of prejudice and rejected it on the merits, including as an alternative to a procedural default holding, our treaty obligations are satisfied and no further proceedings are required. We have no obligation to provide review of that holding on appeal or habeas.
Fourth, the reasoning underlying the Avena court’s holding on procedural default only applies to defaults occurring before the consulate had actual notice of the case. Any claims not raised in the first proceeding after such notice can continue to be treated as defaulted.
Fifth, the required review should be conducted in the state courts, as the President tried to do in his memorandum. Many of these cases are in the notorious Ninth Circuit. Although that court is better than it used to be, it has not yet reached the point that we should trust it with these cases.
Finally, for the reasons expressed in footnote 1 of the Court’s opinion, Congress should declare that Medellin himself has already received the process he is due, the United States is already in compliance with Avena in his case, and his case is specifically excluded from the reach of the statute.
Where is the “self-executing”, “non self-executing” language? “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” I see no mention of a need for legislation. Is there such a thing as a “non self-executing” law made in pursuance of the Constitution? Sorry if it sounds naive but the court has drifted from first principles.
Comment by steve laudig — March 27, 2008 @ 6:25 pm
While I agree that the ball is in Congress’ court, I disagree that any legislation “
Comment by Daniel J. Artz — March 27, 2008 @ 6:45 pm
While I agree that the ball is in Congress’ court, I disagree that any legislation “should be limited to the 50 or so cases at issue in Avena and not yet otherwise resolved.” Face it, the problem in Avena would never have arisen if various State & local police & prosecutors weren’t either ignorant of their Notice obligations under the Vienna Convention, or willing to ignore those obligations. And Texas was not the only state involved, just the only one to be so obstinate in its opposition to any post-appeal review. Oklahoma Courts decided that, in the interest of better international relations, it was better served by granting the review ordered by the ICJ, and Oklahoma’s governor, in a nod to better international relations, commuted a death sentence imposed upon one of the Aveno complainants to life without parole. In order to avoid these situations in the future (I know, the President has now opted out of the Protocol which granted the ICJ jurisdiction over Vienna Convention claims, so we will never again have an ICJ judgment that we violated the Vienna Convention, but that doesn’t mean that continued violations in the future will not cause diplomatic riffs, especially with Mexico which so strongly opposes the death penalty), Congress ought to take one further step, and explicitly require all state and local police, prosecutors, and arraignment judges to give a short but explicit notice to all foreign nationals that, if they are citizens of any country which is a party to the Vienna Convention, they have a right to have the Consul of their home country notified of their arrest, and they have the right to contact that Consul for assistance in their defense. If the arrestee then divulges his nation of origin and requests the notice, or requests to contact his Consul, make the prosecutor responsible for: (a) giving the suspect access to a phone and the number of his nearest consular office; and (b) sending written notice of the arrest, with the name of the suspect and the date and charges of the arrest, to that consular office (the notice can be by fax or email, if available, otherwise by U.S. Postal Service First Class mail). If we give all signatories to the Vienna Convention the opportunity to provide a central listing of their local Consular Offices, along with a phone number, FAX number, and email, for all notices under the Vienna Convention, then local officials will have no reason not to give the proper notices.
As an American who enjoys traveling abroad, I will feel much more comfortable about the willingness of other countries to abide by the Vienna Convention if I know that ALL of the United States, each state and each local police department, will abide by that Treaty, and the World knows it.
Comment by Daniel J. Artz — March 27, 2008 @ 7:07 pm
I agree that, were Congress to act here, it would be proper for the state courts to hear this issue. However, I think your justification for this point is extraordinarily weak. Do you really intend to argue that it is appropriate to deprive a court of jurisdiction over a case solely because many people (like you, apparently) disagree with some of its rulings?
If so, I would point out that this would also make the Texas courts, which are every bit as “notorious” (particularly with respect to death penalty cases) as the 9th Circuit, ineligible to hear these cases.
Comment by Ryan Baldwin — March 27, 2008 @ 8:44 pm
Screw the ICJ. Very simple. No extra-territorial panel of ‘judges’ appointed by non-Americans has DOODLY SQUAT to say about our laws.
Screw ‘em..
Comment by Paul Milligan — March 27, 2008 @ 9:08 pm
Steve – The Senate quite often puts reservations to treaties that we sign. For example, virtually every human rights treaty ratified by the U.S. has a reservation stating it’s not self-executing and requires legislation to enact. Some treaty provisions are self-executing for a variety of reasons, such as pre-existing constitutional rights, but unless a treaty states that it’s self-executing, most treaties need legislation to give it any force domestically.
Comment by Adam Caudle — March 28, 2008 @ 10:26 am
My comment to Paul Milligan’s shrug-off of the international treaties, in this case, the Vienna Convention and the ICJ, is, will you also say “screw them” when U.S. citizens are arrested overseas and not provided with their right to seek their consular authorities and held without proper counsel? This is a terrible precedent for a total disregard of the U.S.’s commitment to international law.
Comment by Hector Vindiola — March 29, 2008 @ 1:57 pm
Paul. It is good to see modern Republicanism in action. You hate the constitution, you hate democracy, you hate anything that does not conform to your own will. Don’t you think it would be better to work harder to be one of these judges than to attack them like you do? You might get further.
Comment by Daniel Thomas — March 29, 2008 @ 2:08 pm
Ken. Your commentary is silly.
US Congress: White is White
SCOTUS: White is White? We don’t understand that. You need to say white is white if you mean that!
US Congress: Ok. white is white.
SCOTUS: white is white? We don’t understand that. You need to say White is White if you mean that!
Really, how long does this silly game have to go on. There is such a thing as “good will” and if SCOTUS wants to it can interpret anything to mean the opposite of what it says. Congress can pass another law and you can be sure that will be litigated and the Court will find some other word besides “undertake” to twist the meaning of in order to arrive at their predetermined conclusion .
Comment by Daniel Thomas — March 29, 2008 @ 2:15 pm
Daniel Thomas — just why is it that you equate Paul’s no-nothing isolationism with “modern Republicanism”? And just what make’s you believe that “modern Republicanism” is the equivalent of hating the constitution and hating democracy? If you are the essential Democrat, then it’s just as I suspected, it’s really not worthwhile to try talk to Democrats, because they refuse to listen.
Comment by Daniel J. Artz — March 29, 2008 @ 7:13 pm