Patterico's Pontifications


Medellin v. Texas, an overview.

Filed under: General — WLS @ 1:17 pm

[Posted By WLS]

Keith Olbermann’s estrangement from truth and reality is well-documented by a myriad of cites.

But, I’m less and less enamored with the nonsense that seems to have infected Glenn Beck’s show since he garnered an hour of television time each night. I’ve been listening to him for a couple of years now on my drive to work in the morning, but segments like the one he did this morning with Jerome Corsi on the Medellin case pending before the Supreme Court, and the idea that Bush-Fox have us on a crash-course towards an Americas Union with a single currency is simply right-wing nutroot yahootiness (?) worthy of MoveOn.Org if it were not already captured by Code Pink.

As to the latter issue, I’ll have more on this subject at another time, but for now let me just point out that Vicente Fox is no longer the President of Mexico, and George Bush will be the President of the US only for another 15 months. It seems to me that their moment to accomplish what it is Corsi and Beck ascribe to them has already slipped away.

But, I want to address in this post and a couple of subsequent ones, the issue of Consular Notification and the Medellin case now before the Supreme Court.

Lets start with the prior decision from the Supreme Court on this very case.

In 2005 the Supreme Court issued a per curiam decision dismissing cert. as improvidently garanted on two issues following the affirmance of Medellin’s death sentence from the Texas State Courts.

The vote in that case was 5-4, with the dissenters being O’Connor, Stevens, Breyer, and Souter. The majority was Rehnquist, Scalia, Thomas, Kennedy and Ginsburg. Ginsburg wrote a concurrence, which was joined by Scalia.

The Court was to address two questions in that case:

1. Whether a federal court is bound by the International Court of Justice’s (ICJ) ruling that United States courts must reconsider Petitioner’s … claim for relief under the Vienna Convention on Consular Relations …. without regard to procedural default doctrines; and

2. Whether a federal court should give effect, as a matter of judicial comity and uniform treaty interpretation, to the ICJ’s judgment.

But, because of procedural issues that were exposed by the briefing in the case, and a policy change adopted by the Bush Administration, the Court determined that a newly filed petition for habeas corpus in the Texas state courts was the more appropriate vehicle for Medellin to pursue the claims raised at that time.

Prior to that, in a matter filed by the Government of Mexico with the ICJ, the ICJ ruled that the Vienna Convention created individual rights in foreign nationals held in jails of another country, and that the US had violated those rights in the cases of certain Mexican national defendants, and that US Courts must revisit those cases and determine whether actual prejudice had been suffered by those defendants without regard to doctrines of procedural default which might otherwise apply, i.e., the failure to timely raise a claim related to deprivation of consular notification under the Treaty.

What specifically are the rights of foreign nationals under the Vienna Convention? First, the right to have the consulate of the foreign national’s home country made aware of his detention; Second, the right to have communication forwarded from the foreign national to his home country’s consulate official without delay; and third, to be advised of these rights at the time of detention.

These oblgiations are bilateral among the 167 nations that have signed the Vienna Convention. That means that they apply equally to Americans in Mexican jails, and Americans in French jails, just as they do to Mexicans in American jails, and French in American jails. Its not a terribly controversial proposition.

Like it or not, those were obligations undertaken by the President Nixon and the United States Senate in 1970 when they signed and ratified the treaty.

That brought into effect Article VI, Section 1, Clause 2 of the Constitution, which reads: “The Constitution, 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.”

At the time Medellin’s Petition was pending before the Supreme Court, the Bush Administration in an executive memorandum stated its intention to have state courts give effect to the ICJ Judgment in accordance with “general principles of comity” as to the 51 cases identified by the ICJ’s opinion, including Medellin’s case. In those cases the Mexican national was not advised of his right to have his consulate advised of his detention, and was not advised of his right to communicate with his consulate.

What does this mean exactly? It simply means that the Bush Administration agreed to make state courts in each of those cases review the convictions of the 51 named Mexican nationals and determine whether any “actual prejudice” resulted from the failure to provide them with their rights under the Vienna Convention. Medellin filed a new state habeas corpus matter in reliance upon the Bush Administration memo, and that matter and any subsequent federal habeas corpus matter would address the issue of consular notification and prejudice suffered by Medellin. So the Court dismissed the petition then pending and didn’t address the merits. But the Court had some things to say on the issue.

First, five members of the Court said that even assuming the ICJ’s interpretation of the Vienna Convention was correct — a matter not yet passed upon by the Court — a violation of those provisions may not be cognizable in a federal habeas proceeding, notwithstanding the ICJ’s view that they were individual, judicially enforceable rights.

Generally, only matters of constitutional import may be raised in habeas proceedings, and violations of statutory rights are not cognizable in habeas proceedings unless the violation rises to the level of amounting to a “fundamental defect” in the underlying process. Whether Medellin’s right to consular notification is “fundamental” or merely “statutory” is unresolved.

Second, when a state court decides issues on their merits, federal habeas relief is available only if the decision(s) were “contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.” This means that if the State court decisions are in the ballpark, metaphorically speaking, a federal court won’t reverse the decisions on habeas grounds even if they weren’t perfect. They must be “contrary to… clearly established” federal law.

With respect to the consular notification issue, the Texas State Courts heard and decided three questions on the merits before the ICJ opinion, and before the Supreme Court rendered and guidance of its own: The Texas courts found: first, that the Vienna Convention established no individual, judicially enforceable rights; second, that Medellin defaulted his right to raise this claim under Texas procedural rules by not raising it at trial; and third, Medellin that failed to show he suffered any harm by the failure of Texas officials to make or advise him of his right to consular notification.

Since all three issues were adjudicated on the merits, and there were not contrary to clearly established federal law AS DETERMINED BY THE SUPREME COURT (as opposed to the IJC), they cannot be raised in a later federal habeas proceeding.

Third, the Court said that a defendant cannot seek to enforce a new rule of law in a habeas proceeding unless that new rule of law is made explicitly retroactive BY THE SUPREME COURT.

The court raised a couple of other issues, but from all of this it is clear that the Court was clearly skeptical with regard to the application of the ICJ judgment to habeas matters in US federal courts.

What the dissenters wanted in this matter was for the Petition not to be dismissed, but for the matter to be returned to the Fifth Circuit where some of the procedural kinks could be considered, and even returned to the district court for further factual findings if necessary. This would have set up competing proceedings, however, since the Texas State Courts were again reviewing the issues under the President’s memorandum. The majority determined that the wiser course of action was to dismiss the pending federal case, allow the state case to run its course, and then allow the normal procedural processes to take over.

So the matter has now gone back through the state courts in Texas, and now back before the Supreme Court. So, what is now on the table?

Well, what is on the table is an opinion by Texas judges that the Presidential Memorandum exceeded the President’s authority (?!?), and it refused to give effect to the memorandum by affording Medellin the review called for in the ICJ judgment.

So, you’ve got some Judges in Texas deciding for themselves what it is the President of the United States can direct them to do with regard to Treaty obligations undertaken by the Executive and Legislative Branches of the Federal Government four-square within the powers conferred upon those branches by the Constitution which was ratified by Texas when it rejoined the United States in 1861.

The issue now before the Court is whether the Texas courts could defy the Presidential directive by refusing to give effect to all parts of the ICJ judgment — specifically the provision of the ICJ judgment that required a judicial review without regard to the doctrines of procedural default that might otherwise apply. I am not an expert on Texas criminal law, but my general understanding is that Texas has some of the most stringent rules on procedural default in the Country — meaning the failure to raise an issue in a timely and appropriate fashion as defined by Texas statute may forever bar a defendant from making that claim no matter how merititorious it might have been. That is oversimplified because there are clearly circumstances where meritorious issues can be raised untimely, but the crux of the dispute now is the Texas courts’ refusal to consider the consular notification claim on its merits due to Medellin’s procedural default, the judgment of the ICJ that Medellin was entitled to such a review, and the Bush Administration decision to order state courts to give full effect to the ICJ judgment over the objections of the Texas Court itself.

The crux of the question is to what extent does the President have the power to order state governments and state courts to modify/adjust/ignore their own rules and procedures in order to give full force and effect to valid treaty obligations entered into and ratified by the Senate under the Constitution?

Now, the outcome of this case isn’t about setting Medellin free or even reversing his death sentence. The outcome now is about whether Texas must comply with the Treaty obligations of the United States as defined by the President, or whether Texas can define for itself those treaty obligations, foreign policy be damned.

This is not about surrendering sovereignty to some international court stocked by UN bureaucrats. It is the considered judgment of the Executive Branch of the US Government that compliance with this IJC decision, to the extent that it seeks further review of state criminal proceedings in circumstances where treaty rights were certainly denied to foreign nationals, is in the foreign policy interests of the US as a whole. That doesn’t mean that the Executive Branch is bound to respect every ICJ decision in a similar fashion, especially decisions that don’t rest on such a clear factual case. But, the Executive Branch is best positioned to judge the benefits and consequences of adopting any particular position with regard to ICJ decisions. The position of the Texas courts seems to be that foreign policy considerations are meaningless.

I would consider that to be not necessarily a baseless view, but for one fact:

The Constitution says judges in every state shall be bound by treaties as the supreme Law of the Land.

This post is long enough as it is, so I’ll save for later a consideration of the right wing kooks’ claims about where this case takes us in the event Medellin prevails. If anyone can find a transcript of the interview of Jerome Corsi by Glenn Beck this morning, that would be helpful.

UPDATE BY PATTERICO: I have edited the post title again, after WLS edited it to make it about the Medellin case — but put the fact of the title change in the headline. I am putting the update regarding the title change here. Also, I have done some spot editing.

I haven’t had a chance to research the law on this, but my tentative, gut reaction is to disagree with WLS, on separation of powers grounds, as well as on the grounds that he is conflating the requirements of the treaty with remedies for failing to observe them.

Foreign nationals have the right to be notified of their consular rights. Nobody disputes that. But the treaty doesn’t say foreign nationals get a habeas proceeding — does it??

And I’m not aware of any authority allowing the Executive branch to order around another branch of government under circumstances like this.

But that’s a tentative opinion, subject to change. Meanwhile, I plan a post of my own to remind you what a scumbag Jose Medelllin is, and how idiotic is his Vienna Convention claim (including the idea that he suffered any prejudice, which is, quite simply, laughable.)

76 Responses to “Medellin v. Texas, an overview.”

  1. Nice explanation of the case and existing facts. Thanks!

    Voice of Reason (10af7e)

  2. WLS, I’ve made similar, but much less well researched and considered, arguments about the Medellin case and the Vienna Treaty in the past… I think your analysis was excellent and I endorse it 100%. I learned something and also found a greater legal basis for my gut reaction that International Treaties are to be followed by the states, or they become meaningless.

    Christoph (92b8f7)

  3. I wish that you could explain this to Michelle Malkin and the Hot Air crew. They have been fanning the fire on this case for awhile.

    chad (719bfa)

  4. Explain something to Michelle Malkin? You gotta be kidding me.

    Michelle is often right, but she goes with her own analysis and that’s it. Changing her position in the light of new information isn’t her strong suit. Seriously.

    Christoph (92b8f7)

  5. That’s why I prefaced it with I wish

    chad (719bfa)

  6. Excellent post, wls.

    nk (6e4f93)

  7. I’ve been doing some additional reading on this subject, and there is a lot of heavy-weight conservative legal opinion coming down against the Administration. I haven’t digested all of it yet, and I don’t think I agree. Frankly, some level of government is charged with the responsibility to enforce treaty obligations, and I don’t agree with some of the analysis saying the Administration’s approach encroaches on the judiciary. The Administration isn’t dictating the Judiciary’s outcome, its simply directing that the judiciary fullfil the country’s obligations under the treaty.

    The optional protocol, which the Bush Administration withdrew from in 2005, but which the US was a participant in until that point, conferred mandatory jurisdiction on disputes under the Convention to the IJC. So, its hard to claim that the IJC acted beyond its authorization. Wisely, the Bush Administration saw that as being the potential longterm problem that it was, and withdrew.

    But it is still left with to wrestle with the diplomatic issue of what rememdy is to be afforded residents in this country who have their treaty rights infringed — rights that we unquestionably granted them in 1970.

    WLS (bafbcb)

  8. When in doubt, allowing Judges to dictate policy, negotiate treaties, and otherwise act like the Executive or Legislative branches is a bad idea.

    Much like letting alphie play with sharp objects.

    JD (d27d21)

  9. It’s my understanding that the consular notification requirement is an optional provision under the Vienna Convention, and it may not be a central part of the treaty. In fact, I believe the US/Bush Administration unilaterally rejected this optional provision in 2005 and it has not applied since that date.

    If that’s correct, I think we need to know if this provision is considered substantive, procedural or even incidental to the treaty. Furthermore, does the answer to this question affect whether the treaty will trump State law?

    DRJ (74c23b)

  10. It’s probably irrelevant and I hope that it won’t distract from the post, but the U.S. Supreme Court’s mandates issue from the White House and are signed by the President.

    nk (6e4f93)

  11. Over at another legal blog – The Volokh Conspiracy, David Kopel opines that this whole process involvolving the Vienna Convention could be used by President Hillary Clinton or Barack Obama to evade Congress to literally abolish the 2nd Amendment, Federal Firearms Licenses.

    Kopel begins:

    The Supreme Court’s oral argument today in Medellin v. Texas has interesting implications for Second Amendment rights. The rationale promoted by the Bush administration, and which apparently has support from at least some of the Supreme Court, offers a roadmap for how a future U.S. President could evade Congress to impose highly restrictive gun controls.

    The Bush position is that when the Senate has adopted a non-self-enforcing treaty, the treaty becomes self-enforcing if: 1. The World Court issues a ruling under the treaty in a case in which the United States accepts jurisdiction, and 2. The President then, exercising his foreign policy discretion, decides that the World Court order must be implemented. The position of Medellin’s lawyers is even broader, that a World Court ruling is sufficient in itself.

    Now let’s see how this could work in a gun control hypothetical:

    Medellin and the Second Amendment

    Horatio (f61519)

  12. DRJ — the optional provision is not the consular notification, but rather the jurisdiction of the IJC to resolve disputes between nations arising under the treaty.

    By withdrawing from that protocal, all disputes over the terms of the treaty are resolved in the same manner other treaty disputes are resolved — through diplomacy, i.e., you negotiate your differences.

    “An Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol), done, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487, which the United States ratified in 1969, Art. I, 21 U.S.T. 326, 596 U.N.T.S. 488, and from which it withdrew on March 7, 2005, Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2675 (2006), provides that “[d]isputes arising out of the inter pretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the Interna tional Court of Justice.” 21 U.S.T. at 326, 596 U.N.T.S. at 488. Any party to the Optional Protocol may bring such disputes before the ICJ.”

    “On March 7, 2005, the United States gave notice of its with drawal from the Optional Protocol.”

    WLS (bafbcb)

  13. Michelle hears the word “Mexican” and her brain freezes up. Then she starts yelling. Which is why she guest shouts on Fox when OReilly is resting his vocal chords by doing a book signing.

    Anyway, I’m no lawyer but I always thought these types of treaty arrangements boil down to reciprocity…. which I am heartily in favor of while traveling in emerging nations.
    Waving a US passport and a Visa card still gets some respect from Prince Edward Island to Tierra del Fuego and if I were to find myself shackeled to a ring in the Tegucigalpa lock up, I’d be pissed off if the Texans had screwed me out of my right to have the consulate at least be notified which wing of that hellhole I’m in.

    SteveG (4e16fc)

  14. Hear, hear, SteveG, on your second paragraph only.

    Michelle isn’t racist. She’s just cocky and stubborn, traits which she’s used to succeed in her career with, if nothing else.

    Christoph (92b8f7)

  15. Thanks, WLS. If the interpretation of how the Vienna Convention applies is up to the IJC, is the remedy for a violation also a matter of treaty? I assume the treaty would also have to give the power to the IJC to decide whether a verdict or ruling should be set aside.

    DRJ (74c23b)

  16. I found this post very informative, with one caveat. Why is it necessary to attack Keith Olbermann in the title? Is that to establish conservative bona fides, or is it a ritual like beginning with “In the name of Allah the All-merciful”?

    Judges in certain countries are known to have problems understanding the Hague Convention on custody of children in divorce cases. In Germany, the national government has had to take power away from local family courts which were simply unwilling to follow treaty language. Maybe we need to do that with Texas.

    Andrew J. Lazarus (c72e72)

  17. I do agree that the two posts, the one attacking Olbermann and Beck, had nothing to do with an otherwise substantial post and should have appeared separately.

    Christoph (92b8f7)

  18. A boilerplate swipe at a “librul” is required before attacking a right-wing darling, Christoph.

    alphie (99bc18)

  19. Lazarus-

    It’s all part of Patterico’s directive from a while back to be more civil. That’s why he attacks Balko and WLS attacks Olbermann and Beck. All in the name of civility.

    Dude (7676e6)

  20. No, you f’ing morons. It’s the way BDS infects both the “Power to the Congress” and “Power to the States” nuts.

    nk (6e4f93)

  21. Your post certainly loses some credibility when you can’t spell Olbermann correctly.

    Signed, Bill Oh-Really?

    nosh (53dd5b)

  22. Ummm, nk, I think he has a good point about Olbermann and sadly about Beck too… but it was only tangentially related to his substantial post… even the headline doesn’t give a hint he’s about to offer a very serious analysis of Medellin as it relates to International Treaty, Texas, the power of the Senate and Presidency, etc… so on that basis, it belonged elsewhere or at least a headline stating what his post was actually about would have been better.

    Not to take anything away from his analysis, because I agree with it.

    Christoph (92b8f7)

  23. I’m not talking to somebody until he apologizes to DRJ.

    nk (6e4f93)

  24. I was correct. DRJ is “nice”, but often counts how many angels are on the head of a pin while being dense to the simple truths about the nature of pins or angels or whatever retarded metaphor I’m mangling.

    Christoph (92b8f7)

  25. As to the title attacking Olberman and Beck, the post started out with the intention of being a Fisking of rightwing nutquackery on Beck this morning courtesy of Jerome Corsi and WorldNetDaily. I hold Olberman in low regard for his lack of intellectual honesty, which is where I increasingly find myself in my view of Beck.

    As I got into writing the post, however, the substantive issues really took hold and I lost the narrative of it simply being a takedown of Beck’s segment today.

    I should probably rename it, and in another post do a better job of linking up my criticism of Beck and his increasing tendency to court kooks to the subject matter of this post. The Olberman reference is gratuitous, and that was the intention. Time does not permit me the luxury of pointing out everything Olberman is wrong about.

    WLS (bafbcb)

  26. Re Spelling Olbermahn’s name correctly — I don’t care enough to check.

    WLS (bafbcb)

  27. To ignore …? DRJ is brighter than just about everybody else here and somebody’s criticism is the same as the bat’s for the sunlight.

    nk (6e4f93)

  28. Hey Christoph –

    Why are you backing down? Last night, DRJ was the Retardo Montalban of Star Trek: Patterico. Stick to your guns, I say.

    Dude (7676e6)

  29. The last time I heard what Dude #29 said was from a peroxide pickup queen trying to start a fight in a beer bar.

    nk (6e4f93)

  30. That people want to award non-American murderers special rights above and beyond what we give our own citizens is disgusting no matter how you try to rationalize it.

    dave (782c57)

  31. Don’t worry about it, Dave. I dealt with an “advocate” from the Mexican consulate in Chicago. Trust me, the “immigrants” are better off without people like her.

    nk (6e4f93)

  32. nk-
    so you know dude?
    Outing him as a peroxide pickup queen is unnecessary and diminishes the forum.
    Or so I’ve heard…..

    SteveG (4e16fc)

  33. I don’t know that Dude is a tarmac lizard. Just that he talked like one.

    nk (6e4f93)

  34. Dave @ 31 — in my experience, which is substantial in this area, advising a foreign national that they have the right to consult with their consulate about the fact of their detention is pretty much a meaningless gesture. They hardly ever avail themselves of the right even when they understand it, and when they do its not like the consulate has Mark Geragos on standby to run out and represent them.

    The really unfortuate aspect of this entire episode is that this whole consular notification issue is such an unserious matter.

    WLS (bafbcb)

  35. WLS: Medellin did not volunteer he was a foreign national, if I remember correctly. How many defendants being detained for capital murder are going to admit they are aliens? Or, are we now expected to add it to the Miranda rights? Plus, is interrogation suppose to stop until a consulate member speaks to the defendant? Ridiculous. There is only a small window of opportunity to get a confession/admission from a defendant and the police are expected to waste it?

    Reading the reports on oral argument, I think Texas does have a chance of winning this.

    dave (782c57)

  36. Dave — I don’t disagree with you on the practicalities of enforcing the treaty. But the treaty obligations are pretty simple — the person being detained has a right under the treaty to be ADVISED that he can have his consulate notified, and that he can have communications passed to the consulate. There is no obligation under the treaty for other law enforcement related activities to standby while that happens.

    So far as I can recall, the various federal courts that have addressed this have all found that the right to such advice exists, but the failure to so advise does not render any statement given or evidence gathered constitutionally suspect since the right is not constitutional in nature. Every case I can recall where the subject arose when this first started to become an issue in the late 1990s held that the failure to advise is subject to harmless error analaysis. So long as there is sufficient evidence of guilt, this error is not so fundamental as to warrant the suppression of evidence or reversal of a conviction.

    And, I reiterate, the fight in the Supreme Court today is really only tangential to whether or not Medellin is entitled to any relief or remedy for the failure of the State of Texas to afford him his right of consular notification.

    WLS (bafbcb)

  37. Christoph….. I wasn’t trying to imply that Malkin is racist, but to me she seems pretty inflexible and knee jerk reactionary when it comes to most things Mexican these days.

    Some time ago I got into an argument with her site about identity theft. I pointed out the identity theft of a SS# is always a crime, but there are times when the consequences of that crime to the victim are almost nil… it may even be a benefit to have someone else paying into the system.
    So to me the crime shouldn’t be prosecuted in draconian black and white fashion…..
    wow, to say that line of thought wasn’t all that well received would be a huge understatement.

    The immigration issue has some real shades of gray in it when it comes to Mexicans, something she attacks as a black and white issue anyway.
    Border politics have been muddled for 350 years. Families are mixed, border towns fluid, hell 3/4 of California town names seem to be in Spanish and the name of the State of New Mexico must give her hives.

    Malkin has important things to say on the issue, but she’ll probably never be part of the solution.

    This topic seems to be about the Executive branch forcefully reminding the State of Texas to call the Mexican consulate. Then making Texas take a do-over and follow proceedure and diplomatic protocol with our next door neighbor.
    Mexico isn’t the best neighbor, their citizens seem to be needing a lot of calls made from our jails over to their consulate, but this is the right thing to do anyway.
    For Malkin to spin it as Bush taking the side of murdering illegals is a rhetorical stretch and maybe even intellectually dishonest as to the intent behind the reminder.

    Doesn’t make her racist, but gawd can she pound away at her drum.

    SteveG (4e16fc)

  38. As to the chances of Texas winning, I suspect we are going to see a result that does not address the question directly, but indirectly makes it go away. The court will not support Texas’s view that the President lacked the power to do what he did, but it will somehow undermine the validity of the ICJ’s decision which will take the President off the hook. Since the IJC’s decision has the force of law only by virtue of its standing pursuant to a treaty, and because the Supreme Court has the final say on what Treaties mean, the Supreme Court can define away the authority of the IJC decision, thereby giving the Administration the ability to ignore it.

    WLS (bafbcb)

  39. Since he waived his right by not invoking it in the trial court, he is not entitled to any relief or remedy. Also, as far as I’m concerned, it is one of the many “rights without a remedy” that exist in law. Again, awarding foreign nationals additional rights that citizens do not have is disgusting.

    The only right Medellin should be afforded is the traditional right to the choice of his last meal. But, even that right has limits. . .

    dave (782c57)

  40. And, I reiterate, the fight in the Supreme Court today is really only tangential to whether or not Medellin is entitled to any relief or remedy for the failure of the State of Texas to afford him his right of consular notification.

    He brutally murdered these two girls. If it causes his execution to be delayed after 14 years, it’s not tangential to me.

    dave (782c57)

  41. Well Dave, there’s no arguing with emotional exhuberance.

    WLS (bafbcb)

  42. See my update.

    Patterico (bad89b)

  43. Well, in view of your update, Patterico, I don’t see that my #10, that the Supreme Court’s opinions are enforced by the President, is all that irrelevant after all. Who else can give give orders if not the Executive Power?

    nk (6e4f93)

  44. But the issue is whether the Executive can issue orders *to the courts*. Isn’t that a different issue? Or am I misunderstanding?

    Patterico (bad89b)

  45. To the “lower” courts from the “higher” court. ICJ to state courts? I admit that that I’m no expert on this.

    nk (6e4f93)

  46. I think NK is right. This isn’t just a case about the Vienna Convention or separation of powers. It could arguably be framed as a states’ rights case.

    DRJ (74c23b)

  47. To the “lower” courts from the “higher” court. ICJ to state courts? I admit that that I’m no expert on this.

    Oh, my God. Did you suddenly become Anthony Kennedy?

    Patterico (bad89b)

  48. DRJ: the actual oral argument transcript is here.

    Guys, I have dibs on this. Once the kids are in bed I’ll pour a glass of wine and read through it.

    Patterico (bad89b)

  49. N. Anthony Kennedy?

    DRJ (74c23b)

  50. Pour two. You’ll need it.

    DRJ (74c23b)

  51. Wordy but you can’t figure out his point? Can’t figure out a holding, can’t figure out what legal test is being applied from his written product? No, NK isn’t Anthony Kennedy, Christoph is.

    SPQR (6c18fd)

  52. Oh, my God. Did you suddenly become Anthony Kennedy?

    Just speculating, not advocating. I uploaded a SCOTUS mandate seven years ago but I can’t find it now and as any lawyer knows every word is important. Any lawyers out there with one? I’m certain that the opinions of the U.S. Supreme Court are enforced by the President. So by whom else would the opinions the ICJ be enforced?

    nk (6e4f93)

  53. And the typos are because my daughter is competing for my time. And she wins. Bye for now.

    nk (6e4f93)

  54. I’m wonder if Medellin advised anyone that he was a foreign national. I heard the father of one of the girls being interviewed and he said that Medellin was brought to the US as a 3 month old baby. Under that scenario, I wonder if he even knew during the trial that he was not a citizen–or, if he did, felt any connection to Mexico, assuming that his parents were Mexican.

    Regarding that last comment, having grown up here in Texas, I have to confess that I never heard the surname Medellin. I started school in a West Texas cotton town during the Bracero program, lived in heavily Mexican-American Corpus Christi, and never heard of anyone with that surname from Mexico.

    I wonder what proof the ICJ had that Medellin is Mexican, or whether that even came up. I once got appointed (against my will) by the Federal Court to represent this drug dealer’s young mistress/mule who was caught up in a raid. My goal was to get her out of the federal system on the basis that she was too young.(I can’t remember the cutoff–16?) She grew up in a little village and had no birth certificate. A member of the cartel showed up at my office and dropped off her baptism papers which listed her DOB. That document was the only existing document showing her place of birth. So, I wonder if Medellin is even Mexican.

    I read that Bush takes the position that the ICJ’s finding that a foreign national cannot default the right to consular notification is incorrect. If he really did take that position, then did he have the discretion to refuse to execute the decision of the ICJ via writing memos to state courts–or, in your opinion, did he have to take the issue to the federal courts?

    Jerri Lynn Ward (bf2d8c)

  55. Isn’t there an issue too as to what constitutes a “foreign national” in the ICJ’s legislative intent? By the actions of our government, and by some of our legislator’s explicit comments, many foreign nationals are treated as de facto US citizens, or “undocumented Americans” here for the entirety of their stay here.

    Isn’t it a bit twisted to treat Medellin as a US citizen for his entire life and then, 10 years post-conviction, suddenly invoke his status as a non-citizen? I think the law was intended to help tourists, business people, simply visitors–those who openly were not living as citizens.

    Patricia (4117a9)

  56. “Some time ago I got into an argument with her [Michelle Malkin] site about identity theft. I pointed out the identity theft of a SS# is always a crime, but there are times when the consequences of that crime to the victim are almost nil… it may even be a benefit to have someone else paying into the system.”

    SteveG, you’re right that the circumstances are more or less harmful depending on the circumstances. For example, you could steal my identity, deposit $16 million of drug money into your account, then promptly commit suicide leaving the money mine… and that would work for me.

    I’d be up $16 mil and it would be taken away from worthless scum.

    But, realistically, this circumstance is rare and most people whose identities are stolen are damaged. And it’s their identity: Regardless of “damage” they have a right to only be associated with their own actions, not that of others.

    So your example was pretty retarded (sorry, Patterico, DRJ… please forgive me…) and I’m surprised you brought it up.

    Christoph (92b8f7)

  57. By the way, the above was a dig at drug dealers, not at you; I didn’t mean to imply you should commit suicide nor that you are worthless scum.

    Christoph (92b8f7)

  58. … by a myriad of cites.

    No, “by myriad cites.”

    Serenity Now (b08c67)

  59. Just retarded?

    Actually I think ID theft that is limited to a fake SS# used only for work is likely the most prevalent form of ID theft in the Southland.
    A large number of those seem to do no harm to the legitimate numberholder.
    Maybe I’m missing it, but if someone uses my number to get a job (which may be happening as I write this) and all that happens to me is that more money gets deposited into the SS system…. how does that hurt me?

    SteveG (4e16fc)

  60. ICJ’s legislative intent

    What does that mean??

    Christoph (92b8f7)

  61. Dude, if I bang your wife and all I do is give her an orgasm, how does that hurt you?

    Answer, it doesn’t, but you still have a right to ask us to refrain. Likewise, I don’t want anyone using my ID #s other than I.

    Christoph (92b8f7)

  62. I was thrown into a Mexican drunk tank over a holiday weekend – consular access denied all six days – until some guy bribed our way out during the 3am guard rotation with cash folded inside his boot heel. A completely gratuitous aside.

    From today’s Medellin v. Texas oral argument:

    Justice Ruth Bader Ginsburg: “The treaty says we accept the jurisdiction of the international court.”

    Justice Breyer: “There are 112 treaties where we submit to international jurisdiction, mostly commercial, like the WTO and NAFTA. Are all these unlawful?”

    Justice Kennedy: “I do think that the states have to comply with this treaty, but they may not have to adopt the framework suggested by the international court.”

    Justice Scalia: “There is a constitutional problem in giving the international court the power to decide what U.S. law is. I am rather jealous of that power. I think it belongs here, and the international courts cannot tell us how to apply our law.””I do think that states have to comply with this treaty, but they may not have to adopt the framework suggested by the international court.” – Justice Anthony Kennedy

    steve (83422f)

  63. I can’t figure out why you guys get away with hijacking so many threads. You seem oblivious to the patience Patterico has with your antics but whine about the small corrections you are subjected to.

    But those of you who don’t understand how identity theft works, and the many ways that it screws up people’s lies and costs them money to resolve, you ought to learn about it on someone else’s dime.

    SPQR (6c18fd)

  64. I have a new post on this issue.


    Patterico (bad89b)

  65. Waa waa SPQR. You were accusing me of “thread hijacking” — three times no less — for having a long and detailed conversation about nuclear war on a thread of nuclear war.

    In this case, conversations evolved. He said something tangentially related to the thread (which you’ll note the post author admitted his headline and half his post didn’t have much to do with the rest so he corrected that and will elaborate on a part of it in a standalone post) and I replied to that. Because I’m enjoying the conversation with him, not just edifying or contradicting the author of the post.

    I’ve also talked about the merits of the post and if I choose to comment on something a commentator said, if this bothers you, I have a heckuva solution for you. See “Comment by Christoph”. Stop reading. Problem solved.

    Get a grip, SPQR. With your noble initials, I’d expect more of an open spirit of debate from you, not just trollishly referring to others as thread hijackers.

    Christoph (92b8f7)

  66. Thanks for the new post. Will be glad to read your take. I lean toward WLS’s take (did before I heard his opinion), but the topic interests me and I’ll be glad to check out yours.

    Christoph (92b8f7)

  67. steve,

    Apparently you asked for consular access and were denied. Check out my newest post: that’s the furthest possible situation from that of the murderous Medellin.

    If you have an example of a Mexican national who demanded consular access and was denied it, bring on the link. I’m all ears (well, in this context, I’m all eyes. Scary thought, that one.)

    Haven’t heard of one such story yet.

    Your story shows something else: even though there is no evidence (that I am aware of) of our denying consular access to Mexican nationals *upon demand* . . . I guess Mexico denies consular access to us even when we demand it. So Mexico isn’t abiding by the treaty even when we do.

    So all handwringing about whether U.S. citizens will be denied consular access is beside the point. As your story illustrates, we will be anyway.

    Guess your story wasn’t so gratuitous after all.

    Patterico (bad89b)

  68. wls,

    What about Cruz’s argument that the optional protocol is not self-executing and would require changes to domestic law?

    Jerri Lynn Ward (bf2d8c)

  69. “I guess Mexico denies consular access to us even when we demand it. So Mexico isn’t abiding by the treaty even when we do.”

    That is a really really good point, if true. And that’s up to the President and Congress to address. It’s not up to Texas (except by pressure on their congresspeople and senators, etc.)

    Perhaps the reasoning by the Bush administration is show Mexico we intend to comply with the Treaty, then use this to embarrass/ shame/ cajole/ force them to follow the treaty for your citizens too. Or not. I have no idea.

    But surely it’s within the President’s prerogative as defined by your constitution to attempt to put forward his foreign policy including U.S. compliance with ratified Treaties?

    Christoph (92b8f7)

  70. SteveG #60,

    I wrote a lengthy answer to your question about ID theft that I won’t bore you with here. Suffice it to say that, even in the border states, it’s very unlikely that the person who steals an identity will use it only for employment.

    But even if that is the case, that alone will generate problems when the ID theft victim files his or her annual federal income tax returns or when s/he files for social security or other federal or state assistance. The ID theft victim will probably be audited by the IRS or will have to document his/her income and expense transactions to the satisfaction of an IRS agent or IRS Special Procedures.

    DRJ (74c23b)

  71. My point of view is that a far more substantive right is access to counsel. If that is not denied, then not being informed of right to contact consular officials is meaningless as it is then the defense counsel’s job to see that his/her client is fully informed of his rights.

    SPQR (6c18fd)

  72. I’d just float out there that the scenario I described happens possibly millions of times a year
    (illegals using SS cards for work X paydays) versus the once or twice ever in the history of mankind example you gave of a drug dealer depositing $16M..
    Holy crap, do you not even know how to launder money properly?
    I’ve worked for a couple of guys who turned out to have been drug dealers.
    Same story. They start out talking a legit job, they toss out the idea of paying for labor, materials, owned equipment rental etc in cash. They have a small piece of the project done and pay the bill in $100’s to see if you’ll bite.
    I’m talking about guys trying to do this with every subcontractor on spec homes up to $15M in construction. They have jobs going in Florida, Southern Cal, Aspen, Sun Valley, Wine Country. Several of them going at various locations at a time.
    One guy I said “no” to liked me enough to try to explain the “how” of it to me and I had to tell him it wasn’t “I am too stupid to grasp the process” but instead it was “I don’t want to”.
    He seemed shocked…. I too stupid to take all that cash. It never entered his mind that I might just be uncomfortable doing something illegal.
    The other guy I said “no” to just moved on and I later found out who he was by reading an article in the Wall Street Journal about an asset seizure of $10M. Evidently the guy invented a unique method of coke smuggling but got caught, did his time and had been supposedly clean. The plea deal had called for all the offshore accounts to be turned over to the feds and so they were… except the suspiciously tremendous run the relatives had in the way upper high end real estate market fueled by seed money earned from “cash t-shirt sales at concerts”. Then there was that nagging problem of the random $10M account in the Grand Caymans that evidently got overlooked when signing over the money to the feds.
    Hate it when I lose track of $10m like that!

    SteveG (4e16fc)

  73. SteveG,

    I won’t address the long-term consequences of the employers in your scenarios but typically the employees buy the temporary use of IDs from poor legal Hispanics, often paying them as little as $50 for the temporary legal identity. It seems like there are no consequences but somewhere down the road it will raise red flags that will cause a problem for the (in this case, willing) ID theft victim. For instance, the legal ID holder will have problems if s/he tries to claim a government benefit such as a tax refund/Earned Income Credit, welfare benefits, social security benefits, or Medicare.

    If your point is that people do this and there are no immediate consequences, that may be true. That doesn’t mean there are no consequences just because you don’t see them right away.

    DRJ (74c23b)

  74. I think WLS’s analysis is right on, with the important detail being: did the treaty specify what would happen if the right to notification were not fulfilled?

    In the end I think it will be decided by the points made by Patricia about him living and being treated as if a citizen, and SPQR who points out that if he had counsel then counsel should have made sure about contact with the Consulate. These points should cause it to be declared a trivial error having no effect.

    Ken (245846)

  75. I was wrong. The mandate I found bears the letterhead of “The President Of The United States” but is signed the Clerk of The Supreme Court on behalf of the Chief Justice. It’s here. Caution, .pdf file. I can’t make heads or tails of it but I can no longer say unequivocally that the President enforces the decisions of the Courts.

    nk (6e4f93)

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