Texas Executes a Mexican Citizen Despite a Breach of the Vienna Convention: A Decision that Undermines America's International Standing and Commitment to the Rule of Law

By EDWARD LAZARUS


Thursday, Aug. 14, 2008

Last week, the State of Texas executed Jose Ernesto Medellin. It’s hard to work up much sympathy for Medellin. He was convicted of gang-raping and murdering two teenage girls, and there is no indication that he was either innocent of the crimes for which he lost his life or mentally incompetent to have fully understood the heinous nature of his acts. For those who are not unalterably opposed to the death penalty on philosophical grounds, Medellin’s crimes are the sort that cry out for expressing the extreme moral outrage that the death penalty is designed to reflect.

Yet Medellin’s demise – or at least the judicial process ushering in his demise – should still be a cause of frustration and disappointment. Medellin’s case presented a test for whether our judicial system would add to or subtract from our collective commitment to the rule of law and either enhance or further diminish our moral standing around the world. We failed that test.

Medellin’s Case: A Conviction Stands Despite a Breach of the Vienna Convention

As I discussed in a previous column, the United States is a signatory to the Vienna Convention, which requires that, upon arrest, foreign nationals must be advised of their right to consult with officials of their home countries. When Texas arrested Medellin, a Mexican national, it failed to honor this pledge.

After Medellin’s conviction, Mexico initiated proceedings before the International Court of Justice (ICJ) on behalf of 51 Mexican nationals, including Medellin, based on violations of the Vienna Convention. And in 2005, the ICJ interpreted the Vienna Convention as requiring the United States to re-examine Medellin’s conviction in light of the violation.

Medellin also pursued appeals in the Texas and federal systems in this country. At bottom, Medellin’s case posed the question of whether Texas had to honor the nation’s international commitments and abide by the decision of the International Court of Justice defining those commitments. Initially, the Texas courts refused on procedural grounds to hear Medellin’s claims based on the Vienna Convention. Next, the case made its way up to the U.S. Supreme Court, where earlier this year, the Justices ruled that the ICJ decision ordering reconsideration of Medellin’s case was not binding domestic law with which Texas had to comply. The Court also ruled that President Bush did not have independent authority to transform the ICJ decision into binding domestic law though presidential edict.

Oklahoma Was Wise to Opt to Review a Conviction In Light of a Vienna Convention Violation, and Texas Should Have Done the Same

The U.S. Supreme Court’s ruling was perfectly reasonable. But, as Justice John Paul Stevens observed in his trenchant concurrence, the fact that the ICJ decision was not binding law on Texas did not change the fact that Texas had failed to observe this country’s treaty obligation to provide foreign nationals with consular notification. And, given that Texas had placed the United States in the position of breaching its promises, surely the wise, prudent, and proper thing for Texas to have done would be to have voluntarily reviewed Medellin’s consular notification claim, in order to bring our country into compliance with its duties.

In similar circumstances, Oklahoma had reviewed the conviction of a foreign national who had not received consular notification, and had quickly determined that the omission was a harmless error. Surely Texas could have gone through the same modest exercise. But Texas officials showed no interest in voluntary compliance with America’s treaty obligations, no matter how modest the cost in time and energy. They had the power to kill Medellin without further ado – and so they exercised that power, as though simply having the power to do something also made it the right thing to do.

Even if Power Exists to Disregard the Law’s Limits, Exercising that Power Has a Profound Cost

Medellin’s execution was a stark reminder that this has been a depressing summer for those who worry about the integrity of our legal processes, and cherish the power of legal norms to limit the power of individuals and institutions to do wrong.

We have learned how this Administration unlawfully packed the civil service ranks of the Justice Department with the right-wing faithful and infused politics into the selection of immigration judges. This gross politicization of DOJ was so pervasive and so broadly countenanced that those DOJ staffers who were rightly troubled by how the civil service rules were being broken were too intimidated to speak out. None of the wrongdoers will be prosecuted.

This summer has also brought us new details about how high-ranking DOJ officials, at the behest of Vice-President Cheney, ran roughshod over dissenting colleagues and created an elaborate legal substructure for authorizing torture and exonerating the torturers. The perpetrators of all this misconduct either remain fixtures within the government or prominent in academic circles.

We also watched the Administration showcase its much-touted Guantanamo military commissions system by putting on trial Salim Hamdan, the illiterate Yemeni who served as Osama Bin Laden’s driver. Even using secret and coerced evidence, the Administration could muster no better than conviction on five counts of the lesser charge of providing material assistance to a terrorist organization, and an extremely modest five-and-a-half-year sentence (with credit for the five years Hamdan has already served at Guantanamo). This conviction on a lesser charge, coupled with a relatively brief sentence, surely showed the commission’s own deep unease with the whole prosecution.

Even these convictions may not hold up on appeal. There is a serious question about whether Congress could make Hamdan’s conduct a war crime without violating the prohibition on Ex Post Facto laws – that is, laws that render criminal conduct that has already occurred and was previously lawful. Perversely, regardless of the outcome of his appeal and the limited nature of his sentence, Hamdan remains subject to indefinite detention because the Administration has designated him an unlawful enemy combatant.

On yet another front, the Justice Department has announced that it won’t enforce the contempt citations voted by the House of Representatives against the former Administration officials – Chief of Staff Josh Bolten and White House Counsel Harriet Miers – who repeatedly refused to comply with subpoenas to testify about the suspicious firing of U.S. Attorneys in the run-up to the last election. DOJ also vigorously opposed the House’s own efforts to seek judicial enforcement of the subpoenas – but has lost the first round in this battle.

What especially rankles about this accumulation of unfortunate events is that they do not take place outside the contours of our legal system. To the contrary, far from being “extralegal,” they are “intra-legal”: Almost every act has a legal foundation or legalistic defense, some of them newly created for the occasion, but no less effective for all that. And almost no abuse of power has serious consequences attached, except for those who end up caught up in the maw of others’ legally-justified abuse of traditional norms. This kind of misconduct, performed under cover of law, threatens to render the law the enemy of lawfulness, or at least of decency and common sense.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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