The Supreme Court Considers the Rights of Foreign Citizens Arrested in the United States:
Examining a Case That Could Dramatically Affect the Way Americans Are Treated When Arrested Abroad

By LOUIS KLAREVAS AND HOWARD S. SCHIFFMAN

Monday, Mar. 21, 2005

On March 28, the Supreme Court will hear oral argument in a case that could have a tremendous impact on the treatment of Americans arrested abroad.

The case involves Mexican citizen Jose Ernesto Medellin. Medellin argues that he might not have been convicted and sentenced to death had he been properly informed of his right to consular representation and assistance - a right guaranteed in Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR).

The case is especially notable for three reasons: First, it arises from an apparent conflict between American law and international law. Second, the manner in which federal and state authorities treat foreign citizens arrested in the U.S. will inevitably affect the way American citizens arrested abroad are treated. Third, its outcome could affect, at a minimum, the convictions and sentences of the 118 foreigners currently on death row in the U.S.

The Facts: With His Home Country in the Dark, Medellin Is Assigned a Questionable Lawyer

At the time of his arrest, Medellin informed Texas authorities that he was a Mexican citizen. However, contrary to the VCCR, Texas failed to inform Medellin of his right to consular assistance and representation. It also failed to inform the government of Mexico of Medellin's arrest.

Medellin was charged with participating in the gang rape and murder of two Houston teenage girls in 1993. He was assigned a court-appointed attorney - but one who had been suspended for unethical activity. At trial, that lawyer called no witnesses at all. Unsurprisingly, Medellin was convicted.

During the penalty phase, which lasted only two hours, Medellin's attorney called only one expert witness, a psychologist who had never met Medellin.

Five years after his arrest, Medellin wrote to Mexican officials, seeking assistance with his death row appeal. Until then, Mexico had not even been told of Medellin's arrest.

Shocked to learn of Medellin's fate, Mexico has since been actively involved in helping Medellin appeal his death sentence, on the ground that he was prejudiced by Texas's violation of the VCCR. Medellin maintains that, had Mexico known of his arrest, the consulate would have, at the very least, been able to provide more competent legal representation.

In Spring 2004, the U.S. Court of Appeals for the Fifth Circuit rejected Medellin's appeal. It held that he had procedurally defaulted his VCCR claim because his attorney had failed to raise the claim in state court. Interestingly, the court reached this holding despite the fact that Medellin's argument on appeal was precisely that violation of the VCCR had led to his being represented by an incompetent attorney who had failed to raise relevant legal and factual issues.

The court also held that there is a question as to whether the VCCR, a treaty between 166 countries, grants rights that can be asserted by individual citizens such as Medellin.

Key Precedents: Three Other Cases Involving VCCR Claims

Medellin is not the first death row inmate to seek Supreme Court intervention on the grounds of a VCCR claim. In 1998, the Commonwealth of Virginia executed Angel Francisco Breard, a Paraguayan national who had not been advised of his VCCR rights.

In that case, the International Court of Justice (ICJ) had issued an order of provisional measures (the equivalent of an injunction) directing the U.S. to "take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings." While the ICJ had authority to review Bread's case under the Optional Protocol to the VCCR conveying jurisdiction on the ICJ for disputes arising from the treaty, the Supreme Court would not stay Breard's execution.

In denying Breard's request the Court held that he had "procedurally defaulted his claim, if any, under the Vienna Convention by failing to raise that claim in the state courts." Moreover, the Court disregarded the ICJ order, holding, "If the Governor [of Virginia] wishes to wait for the decision of the ICJ, that is his prerogative. But nothing in our existing case law allows us to make that choice for him."

Many commentators saw Breard's dismissal of the ICJ order as a low point in American respect for international law. But that is not the only baleful aspect of Breard. It has also served as a precedent for federal courts to dismiss VCCR claims on the ground that they have been procedurally defaulted because they were not raised in state court.

For instance, less than a year later, the U.S. Supreme Court and the ICJ did the same dance. This time, the controversy surrounded the LaGrand brothers: two German nationals sentenced to death in Arizona for murder. When Germany learned of their fate, it supported their VCCR claims in U.S. courts and at the ICJ. But again, the procedural default rule frustrated the brothers' requests for habeas corpus relief, and they were ultimately executed.

The ICJ, however, ultimately ruled in Germany's favor in the LaGrand case. And, encouraged by the ruling, Mexico subsequently brought suit against the U.S. in the ICJ on behalf of not only Medellin, but also Carlos Avena, and 50 other Mexicans on death row. It claimed that all 52 nationals had not been properly informed of their VCCR rights.

The ICJ granted a provisional order directing the U.S. not to execute the Mexican nationals until their VCCR claims could be resolved. Later, the ICJ's ultimate judgment on the merits concluded that the U.S. must not continue avoiding its VCCR obligations by invoking the procedural default rule.

The ICJ's ultimate ruling in Avena specifically instructed the American judiciary, in particular, to grant meaningful "review and reconsideration of convictions and sentences" to ascertain if the VCCR violations caused "actual prejudice" to a convicted foreign national--and, if so, to craft an appropriate remedy.

It was shortly after the ICJ's ruling in Avena, however, that the Fifth Circuit rejected Medellin's VCCR appeal - embracing the very procedural default rule the ICJ had severely criticized. In rejecting Medellin's plea, the Fifth Circuit declared, "Though Avena and LaGrand were decided [by the ICJ] after Breard, and contradict Breard, we maynot disregard the Supreme Court's clear holding that ordinary procedural default rules can bar Vienna Convention claims."

With U.S. courts on a collision course with the ICJ, it is no surprise that the U.S. Supreme Court has now agreed to review the Fifth Circuit's ruling in Medellin's case. To complicate the legal landscape, the Bush administration indicated in late February that all 51 Avena inmates should receive state court hearings to determine if they were actually prejudiced by the VCCR violation. Almost immediately after embracing the ICJ's ruling in Avena in this way, the State Department announced that the U.S. was withdrawing from the Optional Protocol of the VCCR, effectively eliminating additional VCCR cases against the U.S. in the ICJ.

Breard, LaGrand, Avena, and Medellin raise important questions of both domestic and international law. Hopefully, the U.S. Supreme Court will be able to provide desperately needed guidance to lower courts, as well as federal and state officials, as to how to give effect to U.S. obligations under the VCCR.

It is important to remember that treaties are expressly made part of United States law under our Constitution. And a conflict between a treaty like the VCCR and court decisions is not merely a policy issue - it is a legal conflict that must be resolved.

The Issue In Medellin: Do VCCR Obligations Outweigh Procedural Default Rules?

In crafting an opinion in the case, the Supreme Court will have to decide whether the procedural default rule can be reconciled with the U.S.'s obligation to provide meaningful "review and reconsideration" of convictions and sentences.

To this end, the Supreme Court should carefully examine some of its own key decisions, such as the 1804 case of Murray v. The Charming Betsy. There, the Court held that later statutes should be construed consistently with existing treaty obligations to the greatest extent possible.

In addition to confronting this issue, the Supreme Court ought to define the scope of "review and reconsideration," and suggest remedies for VCCR violations in future cases.

The Legal Ramifications: Why the Supreme Court Should Provide Guidance for Future Cases

Why should the Supreme Court go beyond the case itself, to offer guidance for the future? In part, because it is likely that, in the future, U.S. states will again discount VCCR obligations.

Indeed, it is possible that without express direction from the high court, state officials may even fail to comply properly with President Bush's current request for "review and reconsideration" of the Avena cases. After all, within days of President Bush’s instructions, a spokesman for the Attorney General of Texas said, "We respectfully believe the executive determination exceeds the constitutional bounds for federal authority."

This raises another important question: Can the federal government seek to compel state officials to comply with ICJ orders and VCCR obligations? On one hand, state actions that implicate foreign relations are naturally matters of concern to the federal government. On the other hand, the administration of state criminal justice is traditionally reserved to the states.

Complicating the matter is the reality that there are no clearly defined legal mechanisms for the federal government to invoke against state officials acting in ways that might negatively impact foreign policy. However, a review of salient cases indicates that if there is a will, there is a way. That is, federal courts have curbed state policies that threaten to disrupt foreign relations.

For instance, in Zschernig v. Miller, the U.S. Supreme Court struck down an Oregon probate statute because it provided judges with an opportunity to make disparaging comments about East bloc countries during the height of the Cold War. This ruling shows that even simple probate matters can run afoul of American foreign relations.

If that is the case, then certainly a state's decision to eschew VCCR obligations should be a violation of the so-called "foreign affairs doctrine" - most recently applied by the Supreme Court in American Insurance Association v. Garamendi (a 2003 decision which struck down a California statute requiring insurance companies operating in the state to make disclosers about Holocaust era policies because such a statute interfered with the conduct of foreign policy by the federal government). Indeed, the force of this doctrine ought to be at its strongest in those cases where an important international tribunal issues an order to delay an execution.

The Supreme Court may be less willing to tackle the full measure of the questions before it considering the recent acknowledgement by the executive that Avena inmates are due "review and reconsideration." Even so, additional guidance on the role of international law - including the value of international tribunal decisions in U.S. law - would still be useful.

The Political Consequences: Why American Interests Are at Stake

As the Supreme Court wrestles with the issues at stake in Medellin, it should also keep in mind that brushing aside the ICJ's Avena ruling could have negative political consequences for the U.S. At the very least, American consular officials will have a more difficult time demanding full VCCR compliance for the approximately 6,000 Americans detained abroad each year.

In international relations, reciprocity is the golden rule: What goes around comes around. As Ambassador Bruce Laingen, a former American Embassy hostage in Iran, and Billy Hayes, the prisoner of Midnight Express fame, argue in an amicus brief in support of Medellin, "if officials in this country fail to provide foreign nationals with the full benefit of consular assistance, it is inevitable that U.S. citizens abroad will soon suffer a similar, reciprocal fate."

Sometimes it takes only the arrest of an American overseas to upset diplomatic relations. Consider the case of Michael Fay, the teenager arrested in Singapore for vandalism, or that of Gao Zhan, the professor arrested in China for espionage.

Failing to rein in cavalier state and local authorities, who are willing to express disdain and disrespect for the ICJ and the VCCR, also runs the risk of disrupting American foreign relations. If nothing else, ignoring international law squanders America's "soft" power - the power to persuade and influence through attraction rather than coercion.

In the post-September 11 era, American leaders must grasp that, on a day-to-day basis, soft power is the resource that gets you more bang for your buck. That is, in today's world, you can accomplish far more in international affairs by attracting others to your positions than you can by forcing them into tolerating your policies.

Inappropriate or unpopular actions in foreign affairs, however, are more likely to detract than attract supporters to America's international agenda. With soft power becoming hard power's essential companion in the Twenty-first Century, discounting international law only runs the risk of undermining American foreign policy objectives.

Hopeful signs are on the horizon though. For instance, in Oklahoma, the Court of Criminal Appeals and the Governor have, in two separate cases, recently demonstrated respect for the ICJ's judgments in LaGrand and Avena. . In those instances - Valdez v. State and Clemency for Osbaldo Torres - they have reconsidered the death sentences of two foreign nationals who had not been properly informed of their rights to consular representation.

In addition, several states - including California, Florida and Oregon - have enshrined VCCR obligations in their state law. These measures are attempts to reduce the chance of a conflict between state actions and VCCR obligations by bringing state law in line with the treaty.

At a time when Americans overseas are more vulnerable and the US is in need of international partners and friends, it is important that state and federal authorities proceed respectfully with VCCR matters, so as to protect and promote America's long-term national interests. Let us hope that, when it issues its opinion in the Medellin case, the Supreme Court takes the same view.


Louis Klarevas is Assistant Professor of Political Science at City University of New York-College of Staten Island. He also teaches in the graduate Global Studies program at New York University. Howard S. Schiffman is Director of the M.S. program in Global Studies and Clinical Assistant Professor of Global Studies at New York University. He is also Co-Founder of InternationalLawHelp.com, a website devoted to promoting public education about international law.

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