Analysis: how to enforce an international right
on Mar 29, 2006 at 1:17 pm
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.”
