Analysis: how to enforce an international right
The Supreme Court, confronting for a second time in a year the rights of foreign nationals caught up in U.S. criminal cases, went searching on Wednesday for ways to remedy violations of the right under the Vienna Convention to get the aid of a diplomat from a suspect’s home country. It was a somewhat upside-down argument: the Court focused first and mainly on the remedy issue, and examined only belatedly whether foreign suspects do have any rights that are enforceable in court under the Vienna treaty. Five lawyers argued the case, and only the U.S. government’s attorney emphasized the underlying issue of the existence, or not, of private rights.
The hearing came in the consolidated cases of Sanchez-Llamas v. Oregon (04-10566) and Bustillo v. Johnson (05-51).” sequels to last year’s case of Medellin v. Dretke(04-5928(, dismissed by the Court because of subsequent developments in state court in that case. The Court there answered none of the questions about the meaning of the Vienna Convention, and its enforceability.
Throughout the 90-minute argument in the new cases from Oregon and Virginia, the Justices seemed to be proceeding on an unstated perception that the Convention’s promise of consular access did confer a right, of some kind, upon foreign suspects arrested in this country. The exploration thus turned to the question of what to do about violations of that right.
It became clear, fairly early, that the Court was not eager to embrace the one remedy that lawyers for two foreign nationals most wanted — suppression of any evidence, including any confession, that police obtained from a foreigner who had not been allowed to consult a consular officer from his own nation. One potential remedy that several of the Justices seemed to embrace was relying upon defense counsel to raise the Vienna issue, and, if it were not raised, to permit a foreign national to assert a claim of ineffective assistance from that lawyer. (The Justices, however, did not appear to have mind up their minds in what forum such a claim could be asserted; that fundamental issue, too, went begging, for the most part.)
As Justice Anthony M. Kennedy suggested at one point, the Vienna treaty takes into account, in contemplating possible remedies, “the distinguishing characteristic” of each nation’s legal system, and “the distinguishing characteristic of our system is the adversary system.” If a foreign national has a choice of contacting a consular officer, “your attorney can tell you about that choice,” Kennedy said.
The Vienna Convention, several Justices noted, does not contain any specific remedy. But the World Court has operated on the assumption that each nation that has signed the Convention will provide some remedy for violation of consular access. Thus, Justice Stephen G. Breyer commented, “we’re under an obligation to provide a reasonable and effective remedy.” Justice David H. Souter added: “The lawyer should be taxed with knowing” of the right of consular access for his foreign client, “because it’s the law of the land.” Kennedy chimed in: “Lawyers are presumed to know the law.”
Attorneys for the two individuals involved in the cases insisted that it would not give full effect to the Convention’s assurances of consular access if the remedy were a requirement that a lawyer had a professional obligation to trigger that right. Mark T. Stancil of Washington, D.C., counsel for Virginia inmate Mario A. Bustillo, said “the lawyer is not in a position to make the decision for the client” whether to contact a consular officer or not. A lawyer, in fact, may not want the client to contact a consular officer, and may thus make a strategic decision not to inform the client of the access right, Stancil said. The lawyer, he added, may have a conflict of interest, because a consular officer may enter the case if notified, and decide that the lawyer is not adequately representing the client. The Vienna treaty thus “does not trust those rights to the lawyer,” he said.
When several Justices suggested that a right to be informed of consular access was somewhat like the right under Miranda v. Arizona to be warned about the right to a lawyer or a right to remain silent, Peter Gartlan of Salem, Ore., lawyer for Moises Sanchez-Llamas, countered that Miranda warnings only trigger the potential exercise of other rights, whereas the right of consular access is a “stand-alone right,” one that the foreign national has whether or not his lawyer tells him about it.
Lawyers for the two states involved, Oregon Solicitor General Mary H. Williams and Virginia Solicitor General William E. Thro, were required to spend most of their time on the scope of the remedy. Williams opened with an argument against “a judicially created sanction for violation of the [Vienna] treaty,” but was promptly drawn by Justice Breyer into a discussion about the nature of the remedy that ought to follow a violation. When Williams talked about steps Oregon was taking to make sure that state and local law enforcement are aware of consular access rights, Kennedy said this was “not rocket science,” so police could simply be told to advise foreign nationals of their treaty right. “I don’t see why it’s so complicated,” Kennedy said.
Similarly, Thro several times tried to remind the Court that whether the Vienna treaty creates any individual rights at all was at issue, but had to spend most of his time discussing potential remedies of that righ were not observed.. He appeared to accept the suggestion that lawyers should be obliged to apprised their clients of the right.
Only in the last ten minutes of the argument did the Court delve into the core issue of whether the Vienna Convention creates enforceable individual rights. Deputy U.S. Solicitor General Gregory G. Garre, representing the federal government as amicus supporting the states, argued that “a failure to inform a foreign national [of the consular access guarantee] gives rise to a treaty violation, but does not give rise to individual rights.” The traditional remedy for treaty violations, he said, was diplomatic protest.
When Justice Kennedy wondered how a state would go about informing a foreign national of consular access, Garre said this can be done under a State Department program of providing states with information about the Convention and what it entails. Those efforts, he said, “are working. The feedback we’ve gotten is that law enforcement officers are able to do this.”
Funnelling this into an ineffective rep issue does one thing: it keeps the issue live for habeas. Under AEDPA, if there’s no constitutional violation, the plain language of the statute forbids the federal courts from intervening.
Comment by federalist — March 29, 2006 @ 1:56 pm
Excellent observation, federalist. I was wondering why the liberals on the Court were so eager to go for that option. Now it makes sense.
Comment by CDebateAdmin — March 29, 2006 @ 2:07 pm
federalist–the habeas statute, even as amended by AEDPA, allows for challengesd to custody based on a “violation of the Constitution or laws OR TREATIES of the United States.” 28USC sec 2254(a) The AEDPA amendment to subsection (d) merely requires that the state court decision be contrary to, or an unreasonable application of, clearly established “Federal law,” which in light of sec 2254(a) would seem to include clearly established treaty interpretations.
Comment by mbsch13 — March 29, 2006 @ 2:13 pm
Following up, since the AEDPA wouldn’t bar a treaty based claim, it seems likely that the liberals are trying to sway Kennedy as a fifth vote, and they don’t think they can get him by adopting the remedy sought by the foreign nationals.
Comment by mbsch13 — March 29, 2006 @ 2:15 pm
Thanks. Even the blind pig gets the acorn every once in a while.
Comment by federalist — March 29, 2006 @ 2:50 pm
The other thing that ineffective assistance does is open the case up to a much more lenient harmless error analysis. The question on habeas or appeal is going to be, “what difference would advising someone of their right to diplomatic assitance have made?” If someone had diplomatic immunity, the answer will generally be, a lot. If the person was just an average schmoe, however, the usual answer will be “not much” if he already had a lawyer, unless, for example, that lawyer wanted resources like investigators to defend the case that the state wasn’t required to provide, but that diplomat would have provided, or there were serious communications problems with a non-English speaking foreign defendant and the lawyer which a diplomat could have resolved with a translator or an attorney that spoke that language.
The desire for a lenient harmless error analysis is driven by the view that lots of the people convicted did commit horrible crimes and letting them go for admitted crimes is a drastic remedy, for a slip up which most ordinary cops (and a great many defense lawyers unfortunately) at the time would have been unaware of, while in contrast, a failure of an ordinary cop to provide counsel when requested and obtaining a confession instead, can pretty much be presumed malicious in the current criminal justice culture, so a drastic remedy seems more appropriate.
Comment by ohwilleke — March 29, 2006 @ 2:52 pm
I wonder what the effect, on a going forward basis, will be of Bush’s withdrawal from the Convention’s ICJ provisions. A strong argument can be made that this treaty, like most others, does not convey individual enforceable rights.
Comment by federalist — March 29, 2006 @ 2:56 pm
First, until now, courts have generally been holding that there is no individually enforceable right. Since there is not generally a duty for attorneys to foresee changes in the law, do all attorneys who have represented clients before the issuance of the Supreme Court opinion escape being held ineffective, so would this remedy in effect be prospective only? An even more important concern is that many arrestees are indigent and do not have privately-retained counsel. A statement is often extracted at the station before a lawyer is appointed. The lawyer comes onto the scene too late. It is the Consulate (at least some consulates) that, if contacted in a timely manner, will impress upon the arrestee, in his or her own language, the need to not sign a statement, to request counsel, etc., in a manner that advises this course more forcefully than Miranda warnings, which merely offer information. It seems that the main point of consular notification is to ensure that the arrestee knows to request counsel, and once the client is represented by counsel, it seems that for most cases, the need for the consular notification greatly diminishes, except perhaps for those occasional cases requiring overseas investigations. In short, an ineffective assistance of counsel remedy does not seem satisfactory.
Comment by Susan — March 29, 2006 @ 3:31 pm
The governments’ officials who have a duty of informing the arrestee of his or her rights are expressly named, . . . and his or her “own lawyer” or “defense counsel” is not one of the state actors expressly listed. Isn’t that right? I’m wondering if the Justices have some other issue(s) they’re pondering when they asked those questions . . .
Comment by Screwloose — March 29, 2006 @ 3:42 pm
One thing is certain - There’s no way the five internationalists on the Court will say that it does not convey individual rights. They seem to care very little about the text and purpose of such treaties. Their focus is on international opinion, not strong legal argument.
Comment by CDebateAdmin — March 29, 2006 @ 3:53 pm
Don’t forget, though, that the US has signed up not only to the Vienna Convention but also to the optional protocol confering jurisdiction to the International Court of Justice. It should be a matter of national pride to live up to that commitment. According to the account of the hearing, this is exactly what the Court seemed to have in mind.
Andreas Paulus, Munich, Germany
Comment by Andreas Paulus — March 29, 2006 @ 5:11 pm
Mr. Paulus:
Given your nation’s appalling release of Mohammed Hamadi after he served only 19 years for hijacking a plane and brutally torturing a US serviceman to death, I doubt seriously you’re in any position to lecture the US about what it should or should not do as a matter of pride.
This country has millions upon millions of aliens in its midst. Do you really expect 100% compliance–it is not possible. Moreover, do you really expect us to exclude evidence as a matter of course. Would German courts do so?
Comment by federalist — March 29, 2006 @ 7:22 pm
I overstated the case earlier. Section 2253 has the constitutional limitation.
Comment by federalist — March 29, 2006 @ 8:14 pm
Seems to me that the only meaningful remedy for a VC violation would be suppression; at least, that shunting the remedy off into ineffective assistance claims would be an exercise in futility.
Recall that a claim of inefective assistance of counsel requires that the defendant must make two separate showings: deficient performance and prejudice. It’d be relatively easy in most istances to show deficient performance in counsel’s not being up to snuff on the VC. But how could you *ever* show prejudice within the meaning of Strickland v. Washington (in short, whether the deficiency was serious enough to work denial of a fair trial)?
Maybe you could argue that the defendant would have exercised the right to consular access if only counsel had properly advised of this right. But then what? That the defendant’s country of origin would have supplied him or her with a different lawyer? And that that hypothetical lawyer would have done a better job? That seems like way too much of a stretch.
There are certain exceptions to the prejudice requirement, outlined in US v. Cronic, but none strike me, anyway, as plausible candidates in the VC context.
Any ideas about how to get around this problem?
Comment by wm. tyroler — March 30, 2006 @ 12:07 am
Federalist, don’t change the topic. I wasn’t lecturing the US but lauding the Supreme Court. Don’t you at least permit foreigners to laud your institutions?
Nobody claims the US has to change its criminal justice system to implement its international legal obligations (btw, the historical federalists whose mantle you claim were embracing rather than rejecting int’l law). The case at hand is not about 100 percent compliance, but about what to do in case of (inevitable) non-compliance. I have not said anything about suppression of evidence as only means of compliance. The same applies to Germany as to any other country.
Best, Andreas
Comment by Andreas Paulus — March 30, 2006 @ 2:10 am
While AEDPA will not bar a habeas petitioner from raising a Vienna Convention claim, he will not be able to obtain appellate review since by the plain words of the statutory scheme, the certificate of appealability needed to obtain such review authorizes review only of constitutional claims.
Comment by Morrie — March 30, 2006 @ 10:51 am
My apologies, Andreas. When you stated what “should” be a matter of “national pride”, that sure sounded like lecturing to me. In my view, it “should” be a matter of “national pride” to incarcerate brutal terrorist murderers longer than 19 years. As for lauding our institutions, to the extent that you are complimenting our justice system, I do appreciate it. However, to be blunt, I think your lauding of the Court is dependent on the Court seeing things your way on “international law” and applying the dictates of the ICJ.
Your mention of the ICJ was what prompted my 100% compliance remark. As you may be aware, the ICJ decision in Avena (which is remarkable for its stretching of the treaty) does contemplate some interference with our procedures, which could theoretically (if Avena is given precedential effect) lead to the overturning of some criminal judgments. This is what prompted President Bush’s withdrawal from the optional protocol.
Comment by federalist — March 30, 2006 @ 12:06 pm
Federalist, let’s not lecture people about what their governments should or should not do, okay?
Comment by dh65 — March 30, 2006 @ 3:11 pm
dh65:
If you go back and read the posts, I think you’ll find my reference to the release of Hamadi was in response to a comment about what should be a matter of American “national pride”. A sharp post, I readily admit. However, the implication of Andreas’ post is no less sharp: if we don’t “live up” to its “commitments” (which I presume is to listen to the Avena court, given Andreas’ mentioning of the ICJ), then we are acting in a manner for which we as Americans should not be proud.
People who toss around statements about “national pride” cannot complain when responses come in kind. Nor can they, I think, claim that they were not lecturing when they framed the argument in those terms.
Comment by federalist — March 30, 2006 @ 5:26 pm
Several people have mentioned that bringing the Vienna Convention claims through an ineffective assistance claim would add a prejudice requirement. No, according to the International Court of Justice in Avena, there is already a prejudice requirement. Signatories have no obligation to remedy violations which cause no prejudice.
In Sanchez-Llamas v. Oregon, the defense lawyer was aware of consular notification rights before trial, so lack of consular assistance at trial is not an issue in that case. The only issue is suppression of statements taken near the time of arrest. Since notification of the consulate does not become overdue until several days after arrest (according to the ICJ), there is no causal connection between the prompt obtaining of the statements and the later failure to notify.
Sanchez-Llamas suffered no prejudice and therefore is entitled to no remedy.
More on this in the CJLF brief.
Comment by Kent Scheidegger — March 30, 2006 @ 9:28 pm
The fundamental problem with using supression as a remedy is that it assumes that the foreign national will chose to notify the consulate of his/her situation. At the request of the Dept of State, Georgia studied this issue. We tracked all detentions of foreign nationals in city and county jails for a 14 day period. Less than 20% of foreign nationals from non-mandatory countries wanted their consulates notified of their arrest and detention. The second problem with the remedy is that it assumes that every foreign consulate will promptly respond to a request for assistance from one of their nationals. The reality is far different. Many consulates (and embassies) do very little for their nationals who are arrested. Our experience is that the nature of the crime, the potential penalty (death, life or a term of years), the resources of the consulate, the distance from the detention center, and the priorities of the consulate determine how much help, if any, the individual detainee will get. Even the ICJ in Avena held that interrogation does not have to stop while the consulate is notified and decides to get involved. If that is the case, then showing that the defendant was harmed merely because the defendant wasn’t told he/she could communicate with the consulate is speculative at best. I have been involved with the VCCR for over 20 years and even with prompt notification, it is often days or weeks before the staff of a consulate gets around to following up on the notices they receive.
Comment by C.Olson — April 2, 2006 @ 11:38 pm
In my previous post, I stated that less than 20% of foreign nationals who are arrested request consular notification after being advised of the Article 36 “rights.” I went back to the survey data and the actual percentage requesting notification is 13.9%. An additonal 2.27% were from mandatory notification countries.
Comment by C.Olson — April 3, 2006 @ 10:05 pm
Well, if not suppression, then what? My line of thought was:
Treaty itself says who has the duty, and defense counsel isn’t listed.
Sovereign immunity = can’t sue listed government officials [except cops, who have qualified immunity].
Appointed lawyers aren’t state actors, so can’t sue them either. [Congress wants only retained lawyers for rich diplomats, who know their rights, and have diplomatic immunity, sued? I don’t think so!]
Civil remedies being inadequate, suppression per the exclusionary rule is the only viable remedy.
IMHO,
Screwloose
Comment by Screwloose — April 5, 2006 @ 6:29 pm
Screwloose seems to assume that a suit for damages is the only possible civil remedy. Lets not forget that official immunity does not protect public officials from suit in equity. Injunction and mandamus are viable methods of enforcement and can lead to civil contempt. If the goal is to enforce Article 36, then injunction and mandamus are more effective than supression, which doesn’t directly affect the cops.
Also don’t forget that the 7th Circuit has let a damages action for an Article 36 violation go forward so damages may still be a viable remedy.
Comment by C.Olson — April 6, 2006 @ 10:10 pm
Screwloose is also mistaken about the extent of immunity. No one involved in the violation of the consular notification rights has absolute immunity. Qualified immunity does not protect from violation of a clearly established right, which this is. Municipalities can be liable for customary practices, and they have no immunity at all.
“These decisions make it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit—either absolute or qualified—under § 1983. In short, a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury.” Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 166 (1993).
The traditional remedy of the common law for a violation which causes no actual injury (e.g., someone walking across your front lawn) is nominal damages. So, for the violation in Sanchez-Llamas’s case that did not actually change anything, he can sue the cop or the city (if this is a regular practice) for a dollar. But the cop-shooter stays in prison where he belongs.
It is surprising to me how many people matter-of-factly accept suppression of evidence, intentionally causing trials to reach factually wrong results, and who see no problem with expanding this practice into new areas. In an earlier and arguably wiser generation, America’s foremost legal thinkers, such as Benjamin Cardozo and John Henry Wigmore, saw the exclusionary rule for the abomination that it is.
Whatever stare decisis argument may be made for not overruling Mapp, we should certainly not expand it.
Comment by Kent Scheidegger — April 7, 2006 @ 2:39 pm