Patterico's Pontifications

10/10/2007

To Hell with Jose Medellin

Filed under: Crime,General,Immigration — Patterico @ 7:56 pm



The Jose Medellin/Vienna Convention case was argued today in the U.S. Supreme Court. I’m reading the oral argument transcript now.

But I just want to remind you of a few things about Medellin, which I posted here back in June 2005 — more than two years ago!

Much of what follows largely paraphrases my 2005 post. No matter; it’s a good and timely reminder.

Medellin lived here as an illegal immigrant since he was six years old. He was completely familiar with our country’s language and culture. Then, he was sentenced to death in our country for joining fellow gang members in the raping and killing of two young girls, aged 14 and 16.

Despite having lived most of his life in the U.S., he was never told of his right to contact a Mexican Consulate for help. But consulting with the consulate wouldn’t have made the slightest difference to his case, because witnesses testified at his trial that he “bragged about the assault and described using a shoelace to strangle one of the girls because he didn’t have a gun” and that he “put his foot on her throat because she would not die.”

Many fall for the sucker’s argument that the Jose Medellins of this world were simply not allowed to contact their consulates — as if they had demanded to meet with someone from their embassy and were denied that right. But that was not Medellin’s claim; indeed, that is almost never the claim. In almost all cases that claim a violation of the Vienna Convention, convicted criminals complain that they weren’t told of their right to contact their consulate — not that they demanded that right, only to have it denied.

In short, at least on a moral level this country owes Jose Medellin exactly nothing . . . except death.

May it be swift.

UPDATE: I initially said Medellin was born here; that’s clearly not true. But he has lived most of his life here. I have corrected the post.

UPDATE x2: And corrected it again! Incredibly, I said “U.S. Consulate” instead of “Mexican consulate.” Thanks to a commenter.

217 Responses to “To Hell with Jose Medellin”

  1. It’s hard to argue with you about Medellin deserving death and your headline was vastly better than WLS’s… but the treaty demands that the arrestee be notified if I’m not mistaken. He wasn’t. He should have been.

    Ramifications of that omission are the key. Overturning his sentence would be too severe, but… why should U.S. states be free to trump the constitution and the will of both the senate of the congress and executive branch by not fulfilling U.S. Treaty obligations as they are required to by virtue of being part of the United States?

    The part of the constitution (Article VI, Section 1, Clause 2 per WLS) they are violating, in my opinion, was in effect when Texas joined statehood. What gives them that right? Why can’t your states just follow the friggin’ law? You expect citizens to.

    Christoph (92b8f7)

  2. Despite having been born in the U.S.,

    If he was born in the U.S., he’s a U.S. citizen. And the U.S. does not recognize dual citizenship. So what’s the case?

    nk (6e4f93)

  3. nk,

    A quick search reveals that you are right: he was born in Mexico. I should have caught that but for some reason didn’t. He has apparently lived here since the age of six.

    I have fixed the post and thank you for the catch.

    Patterico (bad89b)

  4. Christoph,

    What ramifications do you suggest?

    Especially given that he spent most of his life here, spoke English just fine, and gave officers no friggin’ reason to think that a consulate should be contacted.

    At. All.

    Patterico (bad89b)

  5. Christoph,

    What ramifications do you suggest?

    IF (and I touched on this when we first discussed this some time ago) he didn’t do anything to give the police a reason to believe he was a foreign national then nothing should be done… as I said at the time… if, however, the police did know he wasn’t or might not be a U.S. citizen then the obligation to notify him of his rights shifts to them per the Treaty.

    If they don’t know or understand this due to a training issue or piss-poor implementation on behalf of the state of Texas, that sucks, but isn’t the arrestee’s nor his country’s fault.

    What ramifications? That’s the 64-thousand dollar question. It may ultimately come down to new hearings (with hopefully reiterated sentences), which is what the executive branch is asking for:

    DOBBS: And the likely disposition in terms of the 51 convicted murderers?

    TOOBIN: New hearings is likely, not necessarily new sentences.

    DOBBS: And the success of those hearings?

    TOOBIN: Different — some of them undoubtedly will get their sentences reduced from — from the death penalty. Many of them probably will have their death penalty sentences reaffirmed.

    DOBBS: Jeffrey Toobin, as always, thanks for your analysis, your insight.

    I think Toobin basically has it right here (he’s not advocating anything, just giving his opinion). Unfortunately, due to inadequacies by the police in Texas, this may happen. But if they never knew and never had reason to know he was a foreign national, he shouldn’t get a new hearing because the notification provision of the Treaty wasn’t violated.

    You got his country of birth wrong. How sure are you in your contention:

    [He] gave officers no friggin’ reason to think that a consulate should be contacted.

    At. All.

    ?

    Christoph (92b8f7)

  6. I’ll admit that I’m not 100% certain, but I’ve read about the case — you can peruse the links — and have never seen any hint that he asked for consular access. I’m quite certain that would have been brought up in his legal appeals if he had. And why would he? For virtually his entire life that he could remember, he’d been here.

    How in hell could he have been prejudiced, such that he gets to live — but a legal citizen in the same exact situation, whose only difference was he *was* born here — that person must die?

    Absolute nonsense. Especially for this guy. Nothing his consulate would have done would have affected a thing.

    Patterico (bad89b)

  7. I think the point is we denied Mexico its rights under the treaty.

    To hell with Mexico and the 1,600,000 barrels of oil per day it supplies to America?

    alphie (99bc18)

  8. I don’t really see where it matters that Medellin has lived here since he was 6. The treaty says foreign nationals are entitled to counselar notification and he didn’t receive that right. What this really amounts to is Texas saying we can’t be bothered to follow the law, even when all we have to do is something as simple as making a phone call or in this case making a determination that Medellin wasn’t prejudiced by this omission. Screw that.

    Both my mothers brothers were murdered so I wholeheartedly support the death penalty but I also believe that the state has a duty to obey the laws that are on the books.

    chad (582404)

  9. “I’ll admit that I’m not 100% certain, but I’ve read about the case — you can peruse the links — and have never seen any hint that he asked for consular access.”

    Okay, Patterico, but 21-minutes earlier you made a categorical statement with an extra period and capital in it for emphasis. Now you’re not 100% certain.

    Also, I realize I’m not the best communicator in the world, however, I know you’re a good reader. I can’t believe you missed my point, repeated today and repeated over a week ago to you too. You say: “never seen any hint that he asked for consular access,” but that’s not the point.

    The Treaty doesn’t state an arrestee has to request consular access… I assume as a matter of practicality many individual people may not be aware they can demand consular access, that’s why the Treaty ratified by the Senate, signed by the then President, and supported by the current President requires the police to notify the arrestee not the other way around. I tried to make this clear in my comment as did WLS in his comment here.

    Now I just recently did some traveling out of my country and before doing so, read the pamphlets prepared by my government so I was well aware of my consular rights and where our consulates were located. I had this info in my pocket.

    Most people are not near this thorough and a fellow who was brought to the USA at age 6, but never had reason to discuss anything with Mexican authorities, would not know this. This is one of the many good reasons why the Treaty requires the police to notify the arrestee. As I mentioned previously, training police forces to do this would not exactly be hard and is not an undue burden.

    So the question is not whether this person who was brought to the USA by his parents at age six “assert” his right to speak to his consular officials, it’s did the Texas police force have any reason to believe he was a foreign national and, if so, did they proactively advise him of his right as was their obligation. So please don’t confuse the two.

    I, you, and WLS feel this situation is tragic and stupid because it probably wouldn’t have changed anything. But in an adversarial court system, you don’t get to decide that and neither does the defense. Courts do. Therefore Mexico with the full support of the U.S. federal government demands new hearings. Sadly, these will probably happen.

    The fault here is only twofold: By far the most to Medellin. I’m sure he’s a rapist. And Texas and Texas police forces for apparently not doing their jobs properly.

    The entities not at fault are the U.S. federal government or the Mexican government.

    Christoph (92b8f7)

  10. Patterico,

    The International Justice Project claims that Medellin told the arresting officers that he was born in Laredo, Mexico (strange way to put that) and informed pre-trial services that he was not a citizen. Of course, I take their claim with a grain of salt.

    Jerri Lynn Ward (bf2d8c)

  11. *rapist and murderer

    Christoph (92b8f7)

  12. I do too, Jerri Lynn. But since Patterico is by his own admission not certain, it’s a question of fact to be settled by a hearing.

    Worst case scenario is the death sentence is overturned and I assure you I’m a staunch proponent of capital punishment. But it’s such a serious thing the government has to follow procedure properly and that would include Treaty obligations in this case.

    Ultimately, let the courts decide with a new hearing. If his death sentence stays in effect, I won’t sweat it.

    Christoph (92b8f7)

  13. I’ve read enough of the oral argument to predict that Christoph’s prediction is wrong.

    Medellin will get no new hearing. Why? Because Justice Kennedy thinks he has already had enough hearings, and everyone else is split 4-4.

    Patterico (bad89b)

  14. “”training police forces to do this would not exactly be hard and is not an undue burden.”

    So police in L.A. now get to ignore Special Order 40? Sweet!

    Patterico (bad89b)

  15. Even if Medellin got a hearing re whether he had been prejudiced I wouldn’t worry about the outcome for even a hot minute.

    He has not been prejudiced, because he would have lost anyway.

    But it won’t happen anyway. Ask Tony Kennedy, who for once appears to be on the correct side of the issue.

    Patterico (bad89b)

  16. Having lived here since he was six, and not mentioning his violated right for 10 years after his sentencing, I wonder at what point the authorities learned he was a citizen of Mexico.

    Pat (bbdf62)

  17. Pat, this whole thing is a huge joke.

    Patterico (bad89b)

  18. That was also a point I made at the time Patterico. In short, maybe. The federal government could argue the article of the constitution WLS cited requires them to ask this question to ensure all foreign nationals receive their rights under this Treaty.

    The city could object and a court could decide. Of course, it’s up to the executive branch to decide whether they want to try this tact.

    In this case, if Jerri Lynn is correct, it’s moot though. In Medellin’s case, this treaty notification stuff really does turn on what I said all along and that is did the Texas police have any reason to think he wasn’t a foreign national? If Jerri Lynn’s source is right, he did. If not, great, but Texas police would have to testify they were never told he was Mexican. They haven’t that you’re aware of.

    Christoph (92b8f7)

  19. You’re treating it as a joke, which is unbecoming. It’s awful, but it’s serious. I prefer WLS’s approach to it.

    This is an opportunity to ensure police forces around the country learn to follow this procedure. Since you think he’d get the same result with a new hearing it’s not the end of this world.

    Rather than be PO’d at the feds, maybe you should see they’re acting within their constitutional responsibilities and the states, who accepted the constitution by joining the union, should fulfill their minor part in U.S. foreign policy.

    Christoph (92b8f7)

  20. Okay, maybe that was unfair, but it’s a reaction to your words. You’re taking it seriously. However, for a moment you used the word “joke” which is not the best choice of words in my opinion.

    Christoph (92b8f7)

  21. Explicame where George Bush gets the authority to issue orders to the Texas courts.

    Patterico (bad89b)

  22. The idea that Medellin gets to use this crap to delay his date with death is a joke.

    Oh, and it’s EVIL.

    He RAPED AND KILLED LITTLE GIRLS AND YOU ARE DEFENDING HIM. SO YOU ARE EVIL.

    Anyone who disagrees with you has a strong retort.

    Patterico (bad89b)

  23. “I’ve read enough of the oral argument to predict that Christoph’s prediction is wrong.”

    Maybe yes, maybe no. I’m saying I think he should receive a hearing in this case out of deference to the executive branch’s rightful attempt to follow it’s constitutional and Treaty obligations. That’s my opinion. Whether the Supreme Court agrees with me will be known soon.

    Christoph (92b8f7)

  24. The oral argument suggests that this country has obligated itself to obey the ICJ. I didn’t get that from WLS’s post, but maybe I missed something. Is that the case?

    You should read it. It is interesting.

    Patterico (bad89b)

  25. Patterico, following procedures set by law and advocating processes be followed is not a defense of him. I know you think you’re making some kind of point, but you’re not. THAT was beneath a prosecutor.

    I call people who murder or advocate murdering others evil including Medellin. I don’t call his defense attorneys who follow proper legal procedures in an attempt to represent their client’s interests evil. And I don’t call President Bush evil.

    Get a grip.

    Christoph (92b8f7)

  26. I should read it and will, if not tonight then soon. At present, my interpretation is that the executive branch could tell ICJ to go the hell, but in the event where the executive branch agreed with ICJ that the USA violated Treaty rights, the executive branch has the right to insist the states comply with the Treaty as per the UNITED STATES constitution. This would be because the executive branch feels, at its discretion, this is advantageous to U.S. foreign policy.

    If the executive can’t insist the states follow Treaties, something the states expressly agreed to when they joined the unions, then Treaties the USA signs are meaningless. And that’s not what the constitution says.

    Christoph (92b8f7)

  27. *union

    Christoph (92b8f7)

  28. The Vienna Convention protocols don’t grant rights to Medellin or any individual. The Mexican government is the beneficiary entitled to notice through its consulate. The consulate claims it would have provided Medellin with funds for attorneys, experts, etc.

    So one issue is whether Medellin had inadequate representation. It appears he did not so the failure to notify the consulate was harmless error. I suspect that explains (at least in part) why Texas denied Medellin’s appeal on this issue and I think it would be a convincing substantive due process argument.

    DRJ (74c23b)

  29. And I respect your opinion. A hearing by a court of competent jurisdiction reaching the same opinion would have more impact with me.

    Christoph (92b8f7)

  30. P #21: Explicame por favor.

    DRJ (74c23b)

  31. P – Explicame why J. Kennedy’s comment at p. 50-51 of the oral argument doesn’t strongly suggest what the result will be.

    DRJ (74c23b)

  32. D #30: Well, he hasn’t apologized to you. I’m not sure he deserves courtly politeness. nk won’t even talk to him, and I don’t really fault nk on that score.

    Patterico (bad89b)

  33. I call people who murder or advocate murdering others evil including Medellin. I don’t call his defense attorneys who follow proper legal procedures in an attempt to represent their client’s interests evil. And I don’t call President Bush evil.

    I’m pretty sure that women who get abortions, and attorneys who argue on their behalf, are following proper legal procedures.

    Patterico (bad89b)

  34. A hearing by a court of competent jurisdiction Oreaching the same opinion would have more impact with me.

    Well, you’ll get a decision by a court of competent jurisdiction by June, which will decide he gets no further hearing.

    I’d put money on it, my friend. The oral argument transcript does not lie.

    Patterico (bad89b)

  35. Gracias, Patterico & NK.

    DRJ (74c23b)

  36. P – Explicame why J. Kennedy’s comment at p. 50 of the oral argument doesn’t strongly suggest what the result will be.

    That’s not the only suggestion, but it’s totally consistent with what I’m saying, no?

    Medellin loses. It’s clear, no?

    Patterico (bad89b)

  37. And I’m not demanding courtly politeness.

    DRJ, excellent point, from Justice Kennedy, p. 50:

    Then this is consistent with what you’ve been explaining to Justice Breyer in your answer, that for 200 years we have had some treaties that are very important, but they’re not self-executing; their violation may put us in violation of international law; but it is for us to determine how we are going to comply with the international obligation; and there is no obligation on the part of the State to comply with that law because it’s not self-executing.

    And Kennedy puts his finger on the right place.

    He’s right insofar as it is not self-executing and the state may have no obligation… per se (to an international body). But the state does have an obligation to

    “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.”

    And WLS says:

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

    That’s the question Justice Kennedy and others will have to answer. As in interpret.

    It comes down to who the “us” Justice Kennedy refers to is. If he thinks the states have the final say, he’ll support your position. If he feels Treaty compliance is a federal responsibility and the constitution gives the President the means to petition the courts to insist states assist the federal government in carrying out Treaty obligations, he’ll support my position.

    Ultimately that’ll be up to him. I’m just letting you know what my thoughts on the matter are. I support your President.

    Christoph (92b8f7)

  38. Si, Senor.

    DRJ (74c23b)

  39. As a retired DEA agent who dealt with these issues while stationed in Thailand and Italy, I can tell you this.

    According to international convention, the police should have notified the Mexican Consulate of his arrest. The consulate then would have been able to visit him, facilitate contact with his family and ensure that he received equal treatment as American prisoners. The Mexican consulate/government could in no way get him out. It’s the same for Americans arrested overseas.

    If someone neglected to inform the Mexican consulate then, some sort of reprimand would be appropriate, but it in no way argues for this bum to be released. He got a fair trial.

    The International Court at the Hague can issue whatever proclamation they want, but it has no effect on our own judicial system. What is scary is that we have Supreme Court justices like Steven Breyer and Ruth Bader Ginsburg who think we should be governed by rulings from the Hague.

    That Bush would interfere in a state matter and attempt to dictate a review by Texas state officials is outrageous. I can only hope the Supreme Court will rule in Texas’ favor and allow the state to put this animal to death.

    To me, Bush is an enigma. He does the right thing vis-a vis international terror, but refuses to secure our borders. He puts good judges on the bench like Alito and Roberts, then sides with an illegal alien monster who butchered two American girls. I have to conclude that when it comes to Mexico-Bush is a whore.

    fouse, gary c (33b5ba)

  40. I don’t think the crucial part is whether you side with the federal government (President) or the states. I think the Court – in classic Roberts’ fashion – will focus on the narrow issue of whether the treaty enforcement and remedies are self-executing, and it seems they are not. Fortunately for me, though, Patterico’s in charge of analyzing the oral argument and telling us the real deal. I’m just glad there’s no homework for me tonight.

    DRJ (74c23b)

  41. Gary C Fouse: Have you ever seen the movie Giant? Bush is Bick Benedict, the Rock Hudson character who at the end of the movie finally accepts there is no difference between Anglos and Hispanics and realizes we are a small, small world.

    DRJ (74c23b)

  42. …when it comes to Mexico-Bush is a whore.

    George is living this dream that with enough pandering, Hispanics are going to vote Republican. They won’t and the pandering is driving away the Republican base.

    If Hillary promised to build a 20 foot, double layered wall along the entire border, she would win 45 states.

    Perfect Sense (b6ec8c)

  43. Or Bush could be trying to make it safer for the neocons to travel outside America’s borders when they lose their diplomatic immunity in a few months.

    alphie (99bc18)

  44. alphie, as a staunch Republican, which candidate are you leaning toward?

    Christoph (92b8f7)

  45. I was leaning towards Rudy before he started pandering to the Bush deadenders…so my vote will go to Queen Hillary(*sigh*).

    alphie (99bc18)

  46. Why not Tancredo?

    Christoph (92b8f7)

  47. Tom Tancredo. He’s in favor of Patterico’s plan to keep criminal illegal aliens out of the U.S.

    Christoph (92b8f7)

  48. Aaah, right.

    I’m an atheist, Christoph.

    No Mecca-bombers for me.

    alphie (99bc18)

  49. Why would atheists have a problem with bombing Meecca? I mean, compared to any other place. Surely we shouldn’t discriminate against the people of Mecca if they ever require liberation and freedom.

    Christoph (92b8f7)

  50. To get back near the topic, bombing religious building violates the Geneva Conventions, Christoph.

    alphie (99bc18)

  51. Not if the enemy is using it as a staging area. Anyway, I don’t advocate bombing Mecca; just wanted to say if American forces are ever necessary to bring security and peace to the region like Clinton did with Kosovo, we shouldn’t hold Mecca’s religious status against its citizens and instead should bomb. For the children.

    Christoph (92b8f7)

  52. Anyway, I’m tired. And of course kidding, especially about Tancredo. Though I’m saddened the Republican nominees basically suck this time. Rudy is about as good as it gets and I’m not sure I even like him.

    Goodnight all.

    Christoph (92b8f7)

  53. Since this is the week of Greenburg’s tremendous Thomas posts, I am given to wonder if the solution each side wants isn’t to be found in reducing the arguments to the powers plainly delegated in the Constitution.

    If Bush (or any president) feels compelled to honor the Hague’s decision and believes it to have the power of a treaty, he can commute the sentences of any of the convicted aliens. Nobody can touch his decision.

    This would be a classic Thomasian position to take, no? The remedy is available and no further delineation of states rights vis-a-vis other nations is thus required. It’s just a matter of an elected official having the political will to use his duly constituted power.

    In this case, should Bush commute/pardon? No freaking way. This guy and all the other death row aliens have been given stellar due process and representation. The spirit of the consular notification has been honored beyond the wildest dreams of any founding father. These guys have enjoyed multiple bites of the Judicial apple.

    Ed (87ecf2)

  54. What right’s does a US citizen have if he/she is arrested in a foreign country.

    davod (5bdbd3)

  55. The rights are the same as per the Vienna Convention in 1963. What I would like to know is how Medellin was given information about his rights? Who, in their right mind, would give him a loophole to slip into?

    Valerie (31dce9)

  56. Well Patterico, either your post is wrong or Christoph and this news story have it right. According to this,

    Article 36 of the Vienna Convention requires authorities to notify “without delay” a detained foreign national of his right to request assistance from the consul of his own state. At the time of Medellin’s arrest, the United States was a signatory to the treaty.

    Medellin, a Mexican citizen who had lived in the United States most of his life, claims that had he known that he could inform Mexican consular officers of his detention they could have potentially assisted him by providing funding for experts or investigators or ensuring that he was represented by a competent defense counsel.

    (Emphasis mine.)

    Psyberian (9a155b)

  57. Medellin, a Mexican citizen who had lived in the United States most of his life, claims that had he known that he could inform Mexican consular officers of his detention they could have potentially assisted him by providing funding for experts or investigators or ensuring that he was represented by a competent defense counsel.

    HaHaHa. Since when does Mexico provide anything for their citizens?

    dave (782c57)

  58. I think the SCOTUS will rule that a foreign national will hve to declarethey are a foreign national at the time of the arrest. You know, like the typical loud American. I am a US citizen and I know my rights.

    davod (5bdbd3)

  59. Psyberian…

    They have that obligation if they have a reason to believe they aren’t dealing with a citizen.

    Is it possible that any reasonable person would have thought Medellin was a citizen? It is certainly possible, expecially if his english was good.Even telling the police he was born in Mexico doesn’t mean he wasn’t a citizen, so he would have had to tell them “I am not a citizen of this country” for them to know to inform him of his right to speak to the consulate.

    His claim that he lacked competent counsel better not be part of his current lawyer’s argument.

    Because if his defense was competent (and we have no reason to believe it was not), his entire argument is moot. If the only thing he’d have gained was competent counsel, and he got it anyways without his consulate’s help anyways, then he’s pretty screwed.

    Scott Jacobs (425810)

  60. Well Patterico, either your post is wrong or Christoph and this news story have it right.

    Care to be a little more specific about what I supposedly have wrong?

    Medellin already had the right to competent defense counsel and funding for experts. And I never said that the cops don’t have the obligation to notify the consulate, did I? So what is all that bold lettering about??

    Patterico (bad89b)

  61. Good morning, Psyberian. I don’t believe that your position and the post’s are mutually inconsistent. Medellin’s burden is not potential prejudice but actual prejudice.

    nk (6e4f93)

  62. That should have been a “showing actual prejudice”.

    nk (6e4f93)

  63. Given that the guy’s guilt appears not to be in doubt, I’d be amazed if anyone with half a brain wanted anything less than the most severe sentence for him.

    The only point for discussion, and one which I doubt 99% of us are in a position to comment sensibly on, is whether there has been a breach in a wider point of law and whether ignoring that would have any implications worth considering.

    Intuitively I can’t imagine the mexicans give two hoots about a child rapist/murderer, and I don’t see that the constitutional violation (if any) is serious enough to derail the punishment, so just a caveat acknowledging it and an ‘as you were’ would seem to be the best option (but, of course, it doesn’t always work that way when technical violations come up).

    Bernard (08fd8d)

  64. I read the transcript also and I think Patterico is wrong, I think this is going to come down 5-4 in favor of Medellin. Kennedy may have seemed doubtful but I think in the end this is going to turn on Article 6 and Article 2 of the Constitution.

    The President didn’t direct the courts to come to a finding or as one of the lawyers argued create law by fiat. What he did was say this is the law we expect state courts to abide by it. That’s reasonable given the President’s responsibility for foreign policy.

    In fact this case may even go 6-3 with Thomas siding against Texas given that this case seems to be resolved by the plain language of the Constitution.

    Of course I’m not a lawyer so I may be completely wrong.

    chad (582404)

  65. If I hear one more screed about treaty obligations from some turd who has zero experience with treaties I think I’ll scream. Treaties are seldom enforced, seldom observed, and often violated.

    When the Consular Convention was entered into it was done so with the strict understanding that the laws of the US and individual states were not abridged nor subject to international jurisdiction. Put that in your pipe and smoke it you cretins out there who believe that the US has surrendered its sovernity to some bureaucrats in Brussels or the UN.

    Now its clear that there are those who would rather let a rapist and a murder free than not observe the letter of the regulations in treaties. And as far as these morlocks who howl so loudly about treaty obligations it really, really doesn’t matter if most nations fail to observe these treaties, and flout them, so long as the USA is holier than holy. Too bad about the American citizens who are imprisoned or detained with the knowledge of the US government overseas. Too bad that foreign governments deny US citizens their basic rights just so long as the USA upholds the legalisms 100% even if this means justice is denied.

    Well if the retards are ever overseas and detained I hope they will see what the American embassy can do for them. I hope they will realize that the chances of them getting to see an embassy representative depends on the whims of third world despots.

    Hang this scum and Bush who has sought to intervene in a state matter that is clearly unconstitutional. I suggest that those sounding off so loudly about treaty obligations ought to read the 9th and 10th amendments to the Constitution. But then again the same trolls who make so much noise about treaty obligations are likely to regard the Constitution as a living document that really means whatever they intend, not what the founders stated very clearly.

    Hang the bastards and put a copy of the Consular Treaty in their mouths for the internationalists to see.

    Thomas Jackson (bf83e0)

  66. I still question whether Medellin is a foreign national as envisioned by this treaty, designed probably to aid students, tourists, business people, etc., not illegal aliens living like citizens in a country that never ever enforces its law re aliens. Our government treated him as a citizen for years and he never held himself out to be anything but; he should be treated as a citizen the way a common law wife is treated legally like a wife.

    Ten years after he was convicted of murder, he suddenly calls himself a foreign national. No way.

    Patricia (549779)

  67. I don’t think it’s a good idea to do down that road, Patricia, or we will have “common law” legalized most illegal immigrants in the US.

    DRJ (74c23b)

  68. There are two issues here. One is this specific case, in which the scumbag is trying to use a loophole to preserve his miserable life.

    The other is closing this loophole. I beleive that we should known the citizenship and immigration status of every detainee to prevent cases like this from happening and to deport the illegal immigrant criminals as Patterico advocates.

    My preferred solution is to ask every arrestee if their immigration status, and notify their consul that we are holding them if they are not US citizens.

    A less preferable but acceptable solution is to
    change the Miranda Rights wording to include the case of a foreign national. The detainee can state that he is a foreign national and have his consul notified or choose to withhold this information and forfeit this right.

    MartyH (52fae7)

  69. In the transcript of the oral arguments, Gen. Clement, on page 31 says

    …we do take the position that if the President had done nothing, and certainly if the President had said we’re not going to comply, we’re going to respond to this ICJ judgment the way we did with the Nicaragua judgment, we don’t think that this judgment would be enforceable as of its own terms.”

    From argument there and on the prior page, it appears that Bush doesn’t believe that the Optional Protocol is self-enforcing. I’m reading this to mean that the “choice” to execute the decision of the ICJ was not compelled by the terms of the treaty and that Bush is taking the position on grounds other than legal grounds, just because he thinks we should. And Cruz seems to go on to say that the President’s decision is dispositive. So, we have the President arguing that a non-self-executing treaty–which, in and of itself has no legal force, now has legal force simply because he says it should in this case?

    Clement’s argument confuses me and makes me believe that the President is incredibly tone-deaf to his constituency because he is standing on what he alleges is public policy rather than legal principle. So, does he have the power to do this in light of (as he concedes) the non-self-enforcing nature of the Optional Protocol? I’m really confused about why he is fighting this fight.

    Jerri Lynn Ward (86312b)

  70. When I said Cruz above, I meant Clement.

    Jerri Lynn Ward (86312b)

  71. @ Thomas Jackson

    I am assuming that you are talking about me. I’ll grant you that most treaties are ignored that doesn’t make it right. You should think about the reciprocal of this argument, what if all the countries where we have status of forces agreements governing how our troops are treated when they become involved with local law enforcement decide they don’t have to live up to their treaty obligations. Does the same hang em high and put a copy of the treaty in their mouths apply over there?

    I am far from an internationalist but I do believe the law is the law until it is changed (which as I understand it Bush did by withdrawing the US from the optional protocols to prevent a repeat of this episode).

    chad (719bfa)

  72. Marty H:

    The right to notification doesn’t belong to the individual. Under the Vienna Convention, his home country has the right to notification. Thus, an individual defendant can’t waive his home country’s right to notification.

    Jerry Lynn,

    I think there are 2 reasons. First, Bush has always been concerned that the Carter & Clinton years reduced executive power compared to the legislative and judicial branches. So one goal is to heighten the power of the executive branch.

    The second (admittedly speculative) reason is that the decision to take this position was taken while Alberto Gonzales was Attorney General. I think Gonzales recommended this position to Bush.

    DRJ (74c23b)

  73. DRJ,

    That makes sense in a warped way. I have real problems with basing this fight on those decisions in light of the fact that Bush shook the hand of Jennifer Ertman’s father in 1999 and swore that this POS would stay on death row until he was terminated with prejudice.

    Jerri Lynn Ward (86312b)

  74. Jerri Lynn,

    I feel for the Ertman family and I don’t blame them for being resentful regarding Bush’s position. I don’t like it either.

    But I can’t blame Bush for doing something as President that he thinks is in the country’s best interests, even if it causes him to go back on his word to the Ertman family. As I understand it, the promise to the Ertmans was made by Bush as Governor but his duties and concerns as President are different.

    DRJ (74c23b)

  75. DRJ-

    Doesn’t that make it easier to solve the problem?

    Ask every detainee their country of citizenship and notify their consul that we are detaining one of their citizens.

    MartyH (52fae7)

  76. DRJ,

    I understand your point. It would make more sense if he was taking the position that the U.S. has a LEGAL obligation to enforce the judgment–which doesn’t appear to be the position that Clement was arguing. If I am correct, then I think that Bush is fair game for scathing criticism regarding his priorities. I don’t know enough about constitutional law to know if he actually has the power to do what he is doing in light of the fact that he admits the protocol is not self-enforcing–but I do not buy his position that his actions are in the best interest of the country.

    Jerri Lynn Ward (86312b)

  77. Jerri Lynn,

    I don’t agree Bush is entitled to scathing criticism. People can criticize and there are valid reasons to do so but I don’t think it’s a good idea to claim a President shouldn’t be concerned about the separation of powers doctrine, especially in a time of war when he’s CIC.

    Marty H,

    I think your idea is very good but my point was that it won’t solve the problem in this case. The Mexican government is the claimant in the IJC under the Vienna Convention. I think Mexico could raise a consular notification objection even if Medellin had made a knowing and voluntary waiver and even if Medellin told US law enforcement he was a US citizen.

    DRJ (74c23b)

  78. “People can criticize and there are valid reasons to do so, but I don’t think it’s a good idea to claim a President shouldn’t be concerned about the separation of powers doctrine..”

    That’s not what I mean. If I am correct that Clements was arguing that the ICJ judgment was not enforceable on its own, and Bush is making it enforceable only based on choice to do so and not because of legal compulsion stemming from the protocol, then I question Bush’s judgment in the matter. I wouldn’t criticize on the basis of the separation of powers doctrine. I might not agree with his interpretation, but frankly, I don’t know enough about the law in that area to comment.

    In short, my criticism has to do with him pushing the ICJ judgment when he doesn’t seem to think that it is enforceable without his will to enforce it. I could be wrong in my analysis of what Clement meant, but that’s how it appeared to me.

    Jerri Lynn Ward (86312b)

  79. Jerri Lynn,

    I viewed Bush’s position this way: The President as chief executive implements treaties. When he took actions to make this treaty applicable, a state judiciary can’t frustrate those actions without undermining his powers as President. In other words, I think it has separation of powers implications.

    DRJ (74c23b)

  80. It is a travesty that the blunder was made not to inform him of his legal right to seek consel from his country of birth. But it is a more grave travesty that he be allowed a retrial. No matter what court got involved, the verdict would have been the same. The only solice I am receiving is, that being on death row with what appear to be greater restrictions on his prisoner granted activities, he gets to rot psychologically.

    I thoroughly enjoyed reading his prison ‘blog’ where he states “I am where I am because of an adolescent choice. I have broken the chains that imprisoned me mentally for years. I now live with a free spirit that roams the sky free. In life we all have things that imprison us in one way or the other. But through sharing and understanding we can all break those chains that bound and anchor our lives from reaching their full potential.”

    It is very clear to me that the reasons George Bush is upholding the ruling of the international court is twofold 1) Agreeing to abide by the international treaty on Geneva conventions 2) Protection of future American citizens from a mistake made in the legal process of another sovereignty.

    Jake (ff70f5)

  81. DRJ,

    What do you make of Clements stating, essentially, that the protocol is not self-executing and has no independent enforceability absent the president’s will? Shouldn’t we question Bush’s judgment in choosing to effect the ICJ judgment? I do.

    According to the ICJ, it has claimed the power to nullify these convictions but chose not to do so, according to Ted Cruz. That’s pretty scary to me and I wonder what our protections would be had we not pulled out of the optional protocol.

    I do agree that Bush should protect his powers–but I really question why he chose to execute this judgment.

    Jerri Lynn Ward (86312b)

  82. Well, Jerri Lynn, I think Jake makes a good point that some people are concerned about US travelers in other countries and how they will be treated.

    Remember, too, that I doubt this was the most important decision on Bush’s plate several years ago when his position was crafted. That’s why I mentioned Gonzales’ role in this. I think Presidents (especially non-lawyer Presidents) rely on their AGs to formulate positions on legal matters and they probably follow their AG’s advice.

    I also think the advocates here differed in whether the protocols were enforceable in general and in remedy. I thought the Bush position was that the consular notification provisions are enforceable but there may not be an enforceable remedy. So the question comes down to whether the President can order a state judiciary to comply with a valid treaty. I think Clements’ argument was that, even if the treaty can’t be enforced by Mexico, it can be enforced by the American President and Texas can’t refuse to obey a President’s legal orders.

    That’s why I believe Bush sees this as an issue of Presidential powers. It would be a cleaner separation of powers question if the party involved here weren’t Texas but was instead the federal judiciary. Because a state is involved, it also raises federalism (states’ rights) questions that make this even murkier.

    And I’m not a Constitutional law scholar so this may be all wrong.

    DRJ (74c23b)

  83. Protection of future American citizens from a mistake made in the legal process of another sovereignty

    Lets be honest here…

    The places where American citizens would need such protection wouldn’t give two shits about what treaties exist. And asking to speak to someone from the US Embassy would be a waste of your breath.

    Scott Jacobs (425810)

  84. Comment by chad — 10/11/2007 @ 5:46 am

    That’s pretty much my thinking, although I’m not as optimistic about Thomas. I hope Thomas makes the decision I would, obviously, and think he’s intelligent enough to do so.

    Then, I hope Medellin receives his new hearing with whatever assistance Mexico, it’s bluff being called, decides to give. Then I hope Medellin is sentenced to death and the sentence is swiftly carried out.

    But in any event, I hope U.S. law is also carried out. What Thomas Jackson in his anti-interventionalist fervor seems to not understand is foreign Treaties become United States law when the Senate ratifies it and the President signs it. Then, it become state law per article 6 of your constitution.

    If I hear one more screed about treaty obligations from some turd who has zero experience with treaties I think I’ll scream. Treaties are seldom enforced, seldom observed, and often violated.

    What a great legal standard to aim for. ↑

    When the Consular Convention was entered into it was done so with the strict understanding that the laws of the US and individual states were not abridged nor subject to international jurisdiction. Put that in your pipe and smoke it you cretins out there who believe that the US has surrendered its sovernity to some bureaucrats in Brussels or the UN.

    No, only to your own constitution in effect long before either of us were gleams in our daddy’s eye.

    Intelligent people may differ on to just what extent the President may direct a Texas court to hold a hearing so as to abide by this Treaty, which is now U.S. law and, by rejoining the United States in 1861, Texas law too… and that is something the Supreme Court will decide.

    The key, Thomas Jackson, if you think international Treaties imposing obligations on states are wrong is simple: Don’t sign them. If your country does, they then become part of your Law and Mexico, a sovereign nation, has the right to use whatever legal processes exist to protect the interests of its citizens, however crappy this particular citizen is. Mexico may be doing it out of principle for any number of reasons some of which do not have to be for the benefit of U.S. interests, but for it’s own interests. For example, for the benefit of its citizens imprisoned in foreign countries to ensure Mexico is notified and can provide any help they require and Mexico chooses to give.

    Likewise, the U.S. as lead by President Bush may believe this is in its own foreign policy interests for any number of reasons. I can think of several, but the point is its within his authority and constitutional role to ensure U.S. complies with foreign Treaties and its own law thereto.

    Christoph (92b8f7)

  85. Art. 36 of the Vienna Consular Convention is what’s involved here.

    Two points seem most relevant.

    First, that the foreign national has only to request consular access/notification and the authorities have to inform the consular post that “a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.”

    Second, that “said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.”

    Obviously, the Texas authorities would have to know that he was a Mexican national in the first place, but once that happened their treaty-mandated duty is clear.

    Consul-At-Arms (f4574f)

  86. And apparently he told them he was born in Mexico. That’s his side’s contention and I’ve seen nothing that indicates Texas authorities contest that. So, until they do, I think we have to assume he told the police he was born in Mexico.

    I despise the scum in question, but in the the interests of accuracy, if he was brought to the USA when he was 6 years old, he wouldn’t know the details of this Treaty or even its existence. It’s not like he got brochures from Mexico’s foreign affairs dept. when pickup his passport application. So, by Treaty and common sense, the duty to inform him fell on the Texas police.

    Due to training issues and, I would argue, Texas and many states’ arrogance in fulfilling their obligations to international treaties, no one bothered to tell Medellin of his right to consult his consulate. If I was a betting man, I’d guess no one told the Texas police they had to.

    Christoph (92b8f7)

  87. CAA,

    The duty may be clear but that doesn’t mean there is an enforceable remedy. I think that’s the issue here.

    DRJ (74c23b)

  88. That is the issue. I pray it’s enforceable or at least reviewable with another hearing. If not, it’s meaningless. No country anywhere including signatory nations not even Canada has to notify the U.S. consulate of any citizen it detains and, what’s more, as decided by your Supreme Court, there is no remedy to it that should be applied. So this provision becomes completely, utterly meaningless.

    That seems to be what Patterico is arguing for and WLS is arguing against.

    Christoph (92b8f7)

  89. Someone predicted the court would not issue an opinion until early summer. I say it will come down sometime in Jan/Feb.

    dave (782c57)

  90. Or is Patterico arguing that it should have a pass on Treaty obligations due to “states rights” and the division of your country into separate sovereign states… with the federal government being unable to direct the states… while other countries with more of a federal system should follow this Treaty.

    That’s absurd, but I’m unable to conclude anything other than that’s what the advocates of Texas’s position believe. In any event, Article 6 of your Constitution shows the framers understood this dilemma and expressly meant to bind the states to follow international Treaties ratified by the Senate and signed into law by the President. Texas accepted this provision of the Constitution when it rejoined.

    Christoph (92b8f7)

  91. I still wonder if the Supreme Court telegraphed its decision in Medellin when it recently denied cert in the Heliberto Chi case. The issue in Chi seems the same as the issue in Medellin but the Supreme Court refused to hear it.

    DRJ (74c23b)

  92. I think part of the Texas argument is that this is a treaty that provides no remedy so it can’t be enforced. In other words, the treaty signatories only agreed on what should be done (the duty), not what would happen if the treaty provisions weren’t honored (the remedy). The law calls that a duty without a remedy, and it’s generally unenforceable.

    DRJ (74c23b)

  93. OK Patterico, maybe my statement above was a bit harsh. But your comment in #6 is what I should have referred to, although your post fails to mention the fact that we are required to inform defendants like Medellin of their right to talk to their Consulate. This whole story hinges on that requirement.

    I agree that this guy should be severely punished by the way. But I don’t see why you can’t simply express that “The rules weren’t followed, but this guy should still go away for a long time.”

    Psyberian (9a155b)

  94. How is this case any different than SANCHEZ-LLAMAS v. OREGON ? My thoroughly unlawyerish perusal of the opinion gives me the impression that unless you bring up a failure to notify you of consular rights at trial you’re basically screwed.

    Taltos (c99804)

  95. Good question. I don’t know the answer.

    At any rate, I need to do other things, so good fortune and wisdom all!

    Christoph (92b8f7)

  96. Psyberian,

    What you want me to say, I already said, in an update to WLS’s post last night.

    I didn’t say it in this post because I don’t want to repeat myself all the time.

    I disagree with you on one point. Medellin should not go away for a long time.

    He should be executed.

    Patterico (3954ed)

  97. Taltos,

    There appear to be a number of legal distinctions between Sanchez-Llamas and Medellin that are discussed further here. I don’t know much about the linked website but one of the distinctions it gives (Sanchez-Llamas wasn’t a party to the Avena/IJC decision but Medellin was) is something I read about previously that is a valid distinction and I have no reason to think the others aren’t valid.

    DRJ (74c23b)

  98. Taltos,

    I think another important difference is that President Bush entered a memorandum ordering the states to implement the consular notification provisions, and apparently the timing of the memorandum meant it did not apply to defendant Sanchez-Llamas but it did to Medellin. President Bush claims the memorandum preempts Texas criminal substantive and procedural laws. Texas claims letting President Bush determine state criminal law “by memorandum” is a violation of the principles of separation of powers and federalism.

    DRJ (74c23b)

  99. DRJ,

    You said:

    Well, Jerri Lynn, I think Jake makes a good point that some people are concerned about US travelers in other countries and how they will be treated.

    I heard John Bolton on Laura Ingraham say that is comparing apples to oranges. WND now has that story up.

    I keep fixating on what seemed to me to be a concession by Gen. Clement in oral arguments that the judgment has no independent legal enforceability. He seemed to be saying that Bush decided that he was going to enforce, despite reports in other news sources I saw that indicated he thought the ICJ was wrong in their decision.

    Lawyers like you, Patterico, nk and wls probably deal a lot more with these kinds of constitutional and appellate questions (I do mostly regulatory work these days) than I do, so I would like to know if I’m off base in what I thought Clement was saying. If I’m correct and Bush believes he could have legally told the ICJ to go pound sand, does his decision to enforce the judgment bother you? I’m not even getting to the question as to whether he has the power to enforce the judgment upon the Texas courts.

    Jerri Lynn Ward (bf2d8c)

  100. @DRJ,

    Were I the Supreme Court, I would order the State of Texas to retry each and every one of them. Not free them, not deport them and not reduce their sentences. If they were guilty before (and they were) they’re still going to be found guilty the second time around and we can fire up “Old Sparky.”

    The expense and trouble should be enough motivation to the states to ensure that from now on consular notification is offered and/or made. The way the treaty is written, consular notification can happen in various circumstances and stages of an arrest and prosecution/imprisonment. To wit: “arrested or committed to prison or to custody pending trial or is detained in any other manner.”

    If at any point along that timeline a detainee/arrestee/prisoner/defandant reveals they are a foreign national, consular notification can be made. If the det/arr/pris/def has given sworn testimony to the contrary anywhere along the way, additional charges can be levied.

    My two centavos.

    Consul-At-Arms (334bba)

  101. he was never told of his right to contact a U.S. Consulate for help

    I’m sure you mean “Mexican consulate.”

    Consul-At-Arms (334bba)

  102. Jerri Lynn,

    First, I think people who believe strongly in the diplomatic process want the US to honor the protocols to avoid any chance that other nations will accord the same rights to US citizens abroad. It’s easy to bash diplomacy but it works every day to protect US citizens as they work and travel abroad, so I recognize the value of that argument if only in principle.

    Second, President Bush expressly revoked the applicability of these protocols in 2005. We’re only talking about the cases that occurred during the gap period.

    Third, I haven’t read all the oral argument and I don’t have any special expertise, but it wouldn’t surprise me if Clement conceded that the protocols aren’t enforceable via a remedy for their breach. But I’m certain Clement did not concede that President Bush’s memorandum is unenforceable. (Sorry for the double negatives – it’s hard to say any other way.)

    DRJ (74c23b)

  103. Consul-At-Arms,

    I think I can guarantee you that Medellin would be retried, although perhaps not for this offense. (There are reports of DNA evidence linking him to a similar murder.) But it’s not easy to retry defendants after so many years because witnesses die and evidence deteriorates or is lost.

    I understand your point: Show these Texas yahoos not to ignore rules, even rules they think are foolish. But these rules have already gone away (when Bush opted out in 2005) and the only people you are punishing are the surviving relatives of the victims and the taxpayers who pay for these expensive proceedings. If you really believe these defendants received unfair trials, I can see why you would take this position. If not, it’s an exercise in futility.

    DRJ (74c23b)

  104. DRJ said

    “But I’m certain Clement did not concede that President Bush’s memorandum is unenforceable.”

    That is completely correct. I’m sorry that I was not clear on that point. What I understood him to say was the the ICJ judgment, standing alone on its own terms, was unenforceable absent Bush’s decision to enforce it:

    “…we do take the position that if the President had done nothing, and certainly if the President had said we’re not going to comply, we’re going to respond to this ICJ judgment the way we did with the Nicaragua judgment, we don’t think that this judgment would be enforceable as of its own terms.”

    Jerri Lynn Ward (bf2d8c)

  105. Jerri Lynn,

    It’s my understanding the protocols aren’t enforceable because the treaty doesn’t contain any provisions regarding how it will be enforced. I’m really speculating here but I don’t think that was the focus at oral argument.

    DRJ (74c23b)

  106. Response to DRJ,(post 41)

    I don’t remember the details of Giant, but I assume your point is to defend Bush because he empathizes with Mexicans. That is fine, I do also because I am married to a Mexican. That does not change two basic facts. People who come to our country must do it legally (like my wife did).
    As for the criminals who come here,( a minority), when they commit acts like Medellin did, I don’t want to hear a lot of talk about fine details.

    This man must pay for his crime.

    fouse, gary c (33b5ba)

  107. Why don’t we get update 3 happening. You make this wild red herring argument:

    “Many fall for the sucker’s argument that the Jose Medellins of this world were simply not allowed to contact their consulates — as if they had demanded to meet with someone from their embassy and were denied that right. But that was not Medellin’s claim; indeed, that is almost never the claim. In almost all cases that claim a violation of the Vienna Convention, convicted criminals complain that they weren’t told of their right to contact their consulate — not that they demanded that right, only to have it denied.”

    It’s totally off point. The truth, as you know full well, is the police are supposed to advise him of this right per the Treaty; it’s not a matter of him insisting on it or being denied it. He almost certainly wouldn’t have even known about it.

    Why would a person who was born in the USA… wait, no, sorry, correction… who moved to the USA when he was six years old know about this Treaty? That’s why the police had to tell him.

    But you did demolish that straw man.

    Christoph (92b8f7)

  108. Christoph,

    People make this argument all the time, and it is no strawman. For example, you obviously didn’t read my previous post (linked above) because it quotes an L.A. Times editorial that made *exactly* that argument . . . and I quote:

    Imagine being arrested in a foreign country where you are unfamiliar with the language, the culture, the legal system or your rights, and never being allowed to contact a U.S. Consulate for help. That’s a nightmare that Americans overseas could face if the United States continues to be lax in respecting the rights of foreign nationals arrested in this country.

    So either you don’t know what the word strawman means, or you need to open your eyes and read what people are saying about this case.

    P.S. Remember how I called you an ass? You would seem like less of one if you did two things. One, refrain from rubbing my nose in mistakes that I freely acknowledge and correct. Two, refrain from saying: GREAT POINT!!!!1!! to everyone who disagrees with me on an issue where you disagree with me.

    To drive the point home, maybe I’ll spend a few comments reminding you how you called an argument a strawman when it wasn’t, and praising everyone who agrees with my position even if their arguments are stupid.

    Patterico (bad89b)

  109. What you are arguing for is a free right to extra judicial review for disgusting criminals who are here illegally but give the police no reason to suspect that they are citizens of another country.

    Patterico (bad89b)

  110. “What you are arguing for is a free right to extra judicial review for disgusting criminals who are here illegally but give the police no reason to suspect that they are citizens of another country.”

    No, Patterico, that is false.

    Categorically false and it’s been discussed on this thread: here and here.

    So I’m not wrong, you are.

    Christoph (92b8f7)

  111. I don’t want to see law enforcement burdened by more layers of procedure.
    But they already give Miranda rights, so from now on add in something about rights of foreign citizens.
    The public face of this case is an asshole who should die a miserable death and then spend eternity in some form of hell… I wish him no benefit from it.
    Take this clown out of the picture and this is just a Federal vs. States rights dust up of little consequence that would wind up in some little blurb being given when mirandizing folks.

    Well, I will say criminal illegal aliens are a flash point right now for all the right reasons too.
    Any progress on that front makes me forgive all the nastiness of the current illegal immigrant debate.
    I have enormous tolerance for illegal workers because I’ve been around them my entire working life, but I have zero tolerance for violent criminals, welfare cheats, thieves.
    Drop ’em off in Chiapas with their shower shoes and a toothbrush once they’ve done their time.
    Tell Mexico that we realize they do not have the death penalty, but we do, so they might want to make sure their border crossers are aware of it… and that is on them

    SteveG (4e16fc)

  112. Texas isn’t even making the argument they didn’t know he was born in Mexico, are they?

    Christoph (92b8f7)

  113. So, until they do, I think we have to assume he told the police he was born in Mexico.

    And again, “Born in Mexico” !(necessarily)= “citizen of Mexico.” If he wanted the police to know that he was not a U.S. citizen, that’s what he should have told them.

    McGehee (25adee)

  114. It’s not that I think Texans are yahoos. I rather like Texans. But a little fiscal pain might help the learning process.

    The very last thing I want is for these murdering scum to go free. But following on very close behind is avoiding any weakening of what consular protection American citizens still have abroad.

    Consul-At-Arms (334bba)

  115. You’re stretching, McGehee. Big time.

    Christoph (92b8f7)

  116. Once again, Consul-At-Arms, and at the risk of Patterico’s ire, hear, hear.

    Christoph (92b8f7)

  117. By the way I see a chance for jailhouse humor in the everyday application of the right to notify…
    nothing like watching a gangbanger have to call his mom from jail to ask her if he’s Mexican.

    SteveG (4e16fc)

  118. “What you are arguing for is a free right to extra judicial review for disgusting criminals who are here illegally but give the police no reason to suspect that they are citizens of another country.”

    Patterico, further to comment # 110 ( ↑ ), you know or ought to know this is not my position.

    Not only in this round of debate, but the previous time it came up at least 10 days (probably longer) ago, I made it very clear this is not my position. You are misstating or forgetting it.

    This is just one comment on this thread, but if I searched your archives I’m sure I could find half a dozen from me making the same point as or more directly:

    In Medellin’s case, this treaty notification stuff really does turn on what I said all along and that is did the Texas police have any reason to think he wasn’t a foreign national? If Jerri Lynn’s source is right, he did. If not, great, but Texas police would have to testify they were never told he was Mexican. They haven’t that you’re aware of.

    So kindly don’t tell me I am arguing for something when I’m not.

    Christoph (92b8f7)

  119. fouse,gary c #107:

    Actually, I thought Bick Benedict was a fool – especially at the end. His character almost ruined a good movie except for the Texas scenery, the accurate portrayal of Texas oil wildcatters, and James Dean’s Jett Rink. Not to mention Elizabeth Taylor.

    I’m sorry if my comment was misleading. I was not excusing Bush, I was explaining him.

    DRJ (74c23b)

  120. Consul-At-Arms #115:

    I know you didn’t call Texans yahoos. I did. I don’t like being called a “hick” but I do like the term “yahoos.” It makes us sound like mavericks with a sense of humor.

    As for the argument that refusing to acknowledge these protocols will adversely affect US citizens abroad, I recognized that principle in the first section of my comment #103 (and I know my comments are too long-winded when I have to point out something appears in the “first section”). However, I think the argument falls apart when you remember the US rejected the protocols in 2005.

    Other nations don’t need to use the Medellin decision as an excuse to mistreat US citizens abroad. If other nations want to mistreat Americans, they will regardless of what happens in this case.

    DRJ (74c23b)

  121. Christoph,

    Does the treaty say notification is required if the suspect is a foreign national? Or does it say that notification is required only if police have reason to believe that the suspect is a foreign national?

    I believe that the former is true: i.e. it’s a strict requirement.

    Now, being Christoph, you will demand to know whether I am certain of this and what the proof is — and this, by the way, is one of the reasons I like having you as a commenter. You hold my feet to the fire, and that sharpens my arguments.

    I’ll admit that I say this from memory, not having the time or inclination to look it up. But I have some basis for saying I think my memory is accurate.

    Namely, I once opposed a habeas petition brought by a German national who sought relief under the Vienna Convention after trying to kill her husband. She had been in this country longer than I had been alive. I recall that my research revealed that the law was devastatingly against her position on the issue of a remedy — but that the notification requirement was quite strict, and that we had no plausible argument that the treaty had not been violated. The only issue was the remedy — and for her, there was none.

    Now: let’s assume for the sake of argument that I’m right, and that the treaty is violated regardless of whether police have any reason to believe it has been.

    First of all, do you still argue that the defendant should get a hearing only if police should have known the defendant was a foreign national? If so, you have come completely unmoored from the language of the Vienna Convention and have drifted into the land of How Things Should Be According to Christoph. That’s just lovely if you want to do that, but don’t cite the treaty (you know, the actual treaty in existence, as opposed to the one in your imagination) as support for your position.

    If you are going to go with the actual language of the treaty (assuming my memory is correct) then the question remains: do you continue to maintain that the defendant deserves judicial review for the officers’ failure to notify Medellin of his consular rights, given the technicality that he is a Mexican citizen despite having lived here since the age of six?

    If so, then I repeat, quite confidently:

    What you are arguing for is a free right to extra judicial review for disgusting criminals who are here illegally but give the police no reason to suspect that they are citizens of another country.

    Patterico (bad89b)

  122. @ DRJ #121:

    I know you weren’t accusing me of saying Texans were yahoos; I just wanted to clarify that I don’t see them that way either. No harm, no foul.

    I can’t wait to see how the SCOTUS decides to square this circle.

    Consul-At-Arms (334bba)

  123. CAA –

    I’m sorry. I got carried away in my desire to talk about yahoos and mischaracterized what you said even though I knew better.

    DRJ (74c23b)

  124. According to the FAQ section of the Magistrate’s Guide to the Vienna Convention on Consular Notifications as signed by Texas Attorney-General Greg Abott:

    Q. Do I have to ask everyone who appears before me whether he or she is a foreign
    national?

    A. No, although some authorities do routinely ask persons taken into detention whether they
    are U.S. citizens. If a detainee claims to be a U.S. citizen in response to such a question, you
    generally can rely on that assertion and assume that consular notification requirements are
    not relevant. If you have reason to question whether the person you are arresting or
    detaining is a U.S. citizen, however, you should inquire further about his or her nationality
    so as to determine whether any consular notification obligations apply.

    Now Vienna Convention on Consular Notifications, Article 36:

    Communication and contact with nationals of the sending State
    1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
    (a) consular officers shall be free to communicate with nationals of the sending State and to have
    access to them. Nationals of the sending State shall have the same freedom with respect to
    communication with and access to consular officers of the sending State;
    (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
    (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from
    taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
    2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the
    laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

    The Texas guidebook makes clear a very reasonable requirement, according to Christoph (and Attorney-General Greg Abott), that as long as there is no reason to question whether the arrestee or detainee is not a U.S. citizen, the law enforcement officer does not have to inquire further.

    This strikes me as in accordance with the Vienna Convention, because in the same subsection [Article 36 (1) (b)] as the requirement to notify the sending State’s consul is this: “The said authorities shall inform the person concerned without delay of his rights under this subparagraph;”

    It is immediately and logically apparent to anyone, including myself, yourself, the ICJ I’m sure, Supreme Court I would hope, and in any event, the state of Texas (as shown by their guidebook) and its Attorney-General that this notification is impossible without first identifying the arrestee or detainee as a foreign national.

    No part of the Convention requires the receiving State to ask. They are not allowed to torture it out of people. Therefore, I believe it can be safely assumed by us what the state of Texas assumes: (1) This requirement on them becomes binding when they determine a person is a foreign national; also, per the guidebook and common sense and not in conflict with the Vienna Convention, (2) The receiving State has the obligation to inquire further if there is a question about the arrestee or detainee’s nationality.

    The detainee in this case raised the question by stating he was born outside of Mexico.

    First of all, do you still argue that the defendant should get a hearing only if police should have known the defendant was a foreign national?

    Yes, because only in these circumstances would it even be possible to follow the Treaty. The receiving State’s obligation to notify the sending State’s consul doesn’t start until there is at least reason to believe the arrestee or detainee is a foreign national. Per Article 36 (1) (c), there is an obvious remedy right out of the Vienna Convention what to do in the case where the prisoner only reveals their nationality at a later date, after sentencing: Notify the prisoner’s consul.

    In this case, the receiving State has followed the Vienna Convention to the letter and can’t be faulted. The sending State hasn’t been denied any consular notification rights and, indeed, has received proper notification.

    This also leaves the receiving State in perfect compliance with Article 36 (2).

    Therefore, I repeat quite confidently your statement:

    “What you are arguing for is a free right to extra judicial review for disgusting criminals who are here illegally but give the police no reason to suspect that they are citizens of another country.”

    … is untrue.

    Christoph (92b8f7)

  125. *outside of Mexico = inside of Mexico

    Typos can happen to the best of us.

    Christoph (92b8f7)

  126. You seem “quite confident[]” of something that, it seems to me, you haven’t proven.

    You’re reading something into the language of the treaty: something akin to a “knowledge” requirement. You must be unfamiliar with the legal concept of “strict liability” — not every illegal action requires a guilty mental state on the part of the actor.

    The relevant language I see is this: “The said authorities shall inform the person concerned without delay of his rights under this subparagraph.”

    It doesn’t say: “If they are on notice that the person concerned is a foreign national, the said authorities shall inform the person concerned without delay of his rights under this subparagraph.”

    I am aware of no case that reads into the language of the Convention the knowledge requirement that you have read into it. If I had, I would have made that argument when I opposed the habeas petition.

    If you know of such a case — or of some authority other than a state guidebook, or your ass, then let me know.

    Otherwise I say your confidence may be misplaced.

    In any event, I asked you to assume a hypothetical: that the treaty does indeed impose strictly the requirement regardless of whether officers are on notice or not. You ignored my hypo. Could you please answer it?

    Patterico (bad89b)

  127. In other words, I am asking you to assume that your statement that the detainee in this case raised the question by stating he was born outside of Mexico — wait, correction, inside of Mexico — wasn’t made, and wasn’t required by the treaty.

    What then?

    Patterico (bad89b)

  128. Because you seem quite confident about what the treaty calls for. But you could be wrong, just like you were wrong about where the guy said he was born. To remind you, he didn’t say he was born outside of Mexico. You were wrong about that. So maybe you’re wrong about what you think the treaty says. In which case we’ll be calling for correction #2.

    Patterico (bad89b)

  129. It doesn’t say: “If they are on notice that the person concerned is a foreign national, the said authorities shall inform the person concerned without delay of his rights under this subparagraph.”

    Well, that’s how Texas interprets it, anyway, and they didn’t do that.

    In the event that the Treaty imposes a strict obligation to do the impossible, which is to notify the consuls of unknown states about mystery arrestees whose nationality is unknown to the facts of their detention… then I would say the receiving State ignore this requirement.

    Was this a serious question? Because I don’t get it.

    Christoph (92b8f7)

  130. The point I’m trying to make, Christoph, is that you were wrong to say the guy was born outside of Mexico. That doesn’t even make sense. In fact, it’s retarded and dense.

    Patterico (bad89b)

  131. And if the receiving state ignores the requirement, even though that’s a treaty violation, then no remedy for that.

    Right?

    So you aren’t for a remedy for every conceivable treaty violation.

    Patterico (bad89b)

  132. “In other words, I am asking you to assume that your statement that the detainee in this case raised the question by stating he was born outside of Mexico — wait, correction, inside of Mexico — wasn’t made, and wasn’t required by the treaty

    “What then?”

    I answered that in 125, but may have been burried in a long post so here goes.

    Article 36 (1) (c) makes this clear (to my mind anyway). It allows for the possibility of a convicted prisoner being a foreign national when the receiving State becomes aware of it. In this event, the receiving State is required to immediately notify the sending State — when it becomes aware of it.

    It was impossible to do it further, but now that it is aware of it, it gives proper consular notification, the Treaty is upheld, the sending State’s rights are respected, and everyone is happy.

    Christoph (92b8f7)

  133. *impossible to do it earlier

    Christoph (92b8f7)

  134. I’m asking you to ASSUME that the treaty requires immediate notification.

    Do you understand what it means to answer a question based on an assumption?

    Patterico (bad89b)

  135. IT DOES require immediate notification. But it’s obviously IMPOSSIBLE to give notification any sooner than the receiving State becomes aware of the facts. Surely a court takes into account reality when interpreting any law or Treaty?

    Christoph (92b8f7)

  136. I don’t know what you mean when you say “It was impossible to do it further.” Further? Oh, wait, correction by you, “earlier.” Well, correction #2 by you, because correction #1 by you was that the guy said he was born outside Mexico. Which you were wrong about that.

    Patterico (bad89b)

  137. IT DOES require immediate notification. But it’s obviously IMPOSSIBLE to give notification any sooner than the receiving State becomes aware of the facts. Surely a court takes into account reality when interpreting any law or Treaty?

    If you diddle a girl under 18, you are guilty. Even if you weren’t aware of the facts.

    Just make the assumption already.

    Patterico (bad89b)

  138. I remember reading a lot of cases where the facts showed the police had no idea. The courts always assumed a violation and moved on to the prejudice inquiry.

    Patterico (bad89b)

  139. Patterico, I make typos; you make typos, crap happens. You know we have substantive disagreement about the core issue.

    My contention, as born out by Article 36 above is that the Treaty took this possibility into consideration and allows for notification for a foreign national in prison… if that’s when the receiving State becomes aware of nationality.

    Courts would interpret such a thing, but it seems reasonable and in line with its language. Do you disagree?

    Christoph (92b8f7)

  140. So assuming that there is a strict requirement — which would, after all, be justified in the eyes of some by putting the burden on law enforcement to learn the suspect’s true status — what would your answers be?

    I can tell you don’t want to answer.

    Patterico (bad89b)

  141. Patterico, maybe you’re right, but then it seems you’re arguing against Texas Attorney-General’s interpretation from his own Magistrate’s handbook. Is Texas going to argue against Abbot’s position with the Supremes?

    Christoph (92b8f7)

  142. IF there is a strict requirement, then I’d have to advocate torturing all detainees until they confess their nationality.

    But seriously, I’d just ask them.

    Christoph (92b8f7)

  143. Did you read the oral argument transcript?

    Justices require lawyers to answer hypotheticals, even when the lawyer argues that the hypothetical is counterfactual. There’s a good reason for this: it narrows the issues.

    The lawyer for Medellin tried to wriggle out of answering hypos the same way you are. It didn’t work and shouldn’t work, because the answer is illuminating.

    So answer it already.

    Patterico (bad89b)

  144. You’re still dancing, and it’s obvious.

    Patterico (bad89b)

  145. The next comment where you avoid the question, I stop talking with you about this topic forever. I am trying to have a discussion and you are fucking wasting my time.

    Patterico (bad89b)

  146. What’s more, your failure to answer will be taken as evidence that you wouldn’t follow the treaty. That’s the answer you’re trying to avoid giving — because you know it sounds unreasonable.

    Meaning there are limits to what we have to follow with treaties.

    Which is why Medellin loses.

    Patterico (bad89b)

  147. Patterico,

    I’m trying to keep up with this tennis match but I missed something somewhere. Before you leave, would you mind re-stating the hypothetical/assumption?

    DRJ (74c23b)

  148. I think it’s more accurate to say I don’t have your same legal training than I’m trying to wiggle out of anything. I’m really trying to answer the question.

    Okay, let’s say it’s an ABSOLUTE requirement that the receiving State notify the sending State even if it doesn’t know WHICH sending State is at issue, whether the State is a signatory to the Treaty, or whether the person is probably a U.S. citizen. Then I’d suggest that the entire world will melt down in a quantum singularity if the receiving State try to do anything… or it could fax every state in the world and say, “Hey, we got Joe Blow from Montgomery, Alabama,” in custody.

    Or… the courts could rule there was nothing that could have been done to comply with the Treaty because the defendant didn’t give any info that would make this possible. So, until the receiving State had such info I’d say it isn’t obligated to notify anyone. But if it is… then, it didn’t and the courts would have to decide what if any sanctions to levy.

    Since there’s no possible way the State could have done anything different, I imagine the court would do nothing.

    In the event with Medellin, scum that he is, Texas could have followed their own policy so that fact has nothing to do with your hypothetical.

    Christoph (92b8f7)

  149. Never mind.

    DRJ (74c23b)

  150. The Vienna Convention states: “The said authorities shall inform the person concerned without delay of his rights under this subparagraph.”

    Assume that a failure to inform the person concerned constitutes a violation of the Treaty — regardless of whether the said authorities knew (or even should have known) that the person concerned was a foreign national.

    Failure to notify = treaty violation.

    That’s your working assumption.

    What remedy?

    Patterico (bad89b)

  151. In other words: assume the Treaty means exactly what it says.

    Patterico (bad89b)

  152. Thank you, Professor Patterico.

    DRJ (74c23b)

  153. I’ll accept your assumption in a moment, but first point out its absurdity. As a layperson, it is my understanding that “without delay” generally means at the first practical moment, even possible moment, even poses a burden on the party to go out of its way to do something. But I don’t believe that phrase imposes a physically impossible burden: That it notify someone when it doesn’t know who that is.

    But if that IS the burden… then I would propose NO remedy at all because it’s absurd.

    I would instead propose the receiving State notify the sending State as soon as it becomes aware.

    So I’ve answered your question. If the Treaty imposes an impossible burden I’d offer no remedy at all. If the sending State had a problem with it, I’d tell them to blow it out their ear.

    Christoph (92b8f7)

  154. Chad:
    My comments weren’t directed at you. Our troops are usually subject to host government regulations and are often subject to their jurisdiction depending on the nature of the crimes committed. Did you believe otherwise?

    My comments were directed at Chrissy.

    Its amazing how people who have never operated overseas nor dealt with foriegn nations seem to hjold treaties as mystical. Most are drafted for political purposes without any intention of being enforced.

    As cretin Chrissy is able to ignore the conditions under which the Vienna Convention was ratified, I wonder if he believes the conditions under which it was ratified are somehow less binding than the interpretation foreign bureaucrats place on them rather than the promises mde to have it ratified.

    Itss this type of twisted thinking that has twisted the Geneva Convention into the joke that has disarmed the US and rendered America’s security a joke. We now have cretins how would reduce our laws into the servants of ambulance chasers and foreign ones at that. Whyen the law becomes reduced to the province of ambulance chasers like Chrissy rather than serve justice and common sense we have the result that laws are a joke, the legal system becomes a joke, and we have idiots like Chrisy telling us what our moral obligations are to a nation like Mexico which violates its treaty obligations on a daily basis by violating its treaty obligations regarding visas and legal entry. Or did you forget that Chrissy?

    Perhaps you fogot that the Mexican government delibertly subverts its treaties by assisting the smuggling of illegals across our borders? or that its military assists drug smugglers on a daily basis to cross the U frontier.

    So tell us why we have an obligation to observe a treaty which is violated daily?

    This is the kind of mentality that had produced the current legal system. It is this disregard for justice and common sense that defends the murder, rape and torture of innocent victims in the name of bureacracy and the greater glory of cookie pushers.

    Do tell us about your foreign service and lengthy experience overseas Chrissy. No doubt your resume must match your accomplishments as a fourth rate associate at a sixth rate ambulance chaser law firm.

    The fatuous arguments employed to justify such an abause of the judicial system are a tribute to the dangerous self indulgences of the egos of those who vomit forth the de riguer internationalist pap that tells us if only the USA obeyed the treaties it enter into, regardless of how other nations violate them the world would be a better place.

    Bet you love the Law of the Sea Treaty too. When the Constitution is destroyed and buried it will be the work of idiots who tell us our own laws will be signed away by the senile certins that are our Senate. Remember how the UN was sold and what it has turned out to be. Its time to jetison our treaties and insure all international obligations are bilateral and rigidly enforced.

    Not by State but by domestic agencies that cn monitor them unlike state.

    So Chrissy do continue your screeds but do offer a tinfoil hat if we have to read them. Your faith in the inerrancy of treaties is a tribute to political correctness and the mentality that praises police states for keeping populations low.

    Thomas Jackson (bf83e0)

  155. Welcome to the Socratic method, Christoph.

    DRJ (74c23b)

  156. “[U]ntil the receiving State had such info I’d say it isn’t obligated to notify anyone.”

    So if I’m right that the Treaty doesn’t care whether the authorities have the information or not, then we are free to ignore the Treaty under certain circumstances without any remedy to be imposed.

    Now all you have to do, Christoph, is find any legal authority, beyond some goddamn Texas handbook that doesn’t legally bind anyone, that says the Treaty means something other than what it says.

    Absent that authority, the Treaty doesn’t always have to be followed in order to deny extra judicial review.

    Patterico (bad89b)

  157. “Its amazing how people who have never operated overseas nor dealt with foriegn nations seem to hjold treaties”

    What are you talking about?

    I’ve never served in a war if that’s your thing, but have “operated with” your forces outside of my country.

    I’ve traveled too. Up yours.

    And no I don’t love the “Law of the Sea Treaty”. I oppose it. The Treaties aren’t related. Telling a foreign nation when you’ve got one of their nationals detained is reasonable in my opinion. I like that I can request that when I travel and many if not most states who’ve signed this Treaty will respect it. Except for America, apparently.

    Christoph (92b8f7)

  158. “I would instead propose the receiving State notify the sending State as soon as it becomes aware.”

    Hypo.

    There is a database of illegals sitting just across the room.

    Defendant says nothing. Cop doesn’t bother to access the database.

    The State is not aware. No notification necessary under your quoted standard.

    Want to change it?

    You’re making up standards as you go along, so I’ll let you change it mid-argument.

    Might be nice to find a principle that underlies the standards you propose, though.

    Patterico (bad89b)

  159. Patterico, I understand (I think) your opinion and disagree with it. Right now it’s probably not settled law. It will be after the Supreme Court rules.

    WLS takes something close to my opinion and I think he’s right. But maybe not. It’ll be a close decision either way.

    We’ll see. But your contention:

    “What you are arguing for is a free right to extra judicial review for disgusting criminals who are here illegally but give the police no reason to suspect that they are citizens of another country.”

    … is wrong. I’m arguing that the receiving State notify the sending State when it becomes aware it has detained one of its citizens.

    Christoph (92b8f7)

  160. Can you answer the Q in 160?

    Patterico (bad89b)

  161. Ummmm, the principle is taken right of what you seem to feel is Greg Abott’s worthless handbook. When the cops become aware (or have reason to suspect, which should prompt them to inquire further) that someone is a foreign national, they should attempt to determine what the person’s nationality. Once that is determined, they should notify that person’s consul provided their consul has requested that (contact State dept. if any questions).

    Is that difficult to understand or something?

    Christoph (92b8f7)

  162. What’s the question. The only thing I see is, “Want to change it?” I don’t understand.

    In any event, I just received notification of a family emergency. I have to go. Have a good night.

    Christoph (92b8f7)

  163. You just changed the standard from “they know” to “they know or have reason to suspect.”

    But, OK. In 160, the database is there.

    They just have no reason to suspect that he’s in there. He seems white; he talks English; he says nothing; his name is Johnson.

    But he’s a foreign national and he’s in the database.

    Don’t make me ask this 20 times. If they don’t look him up, but have no reason to suspect he’s in there, is there a violation? Keep in mind the database is right there in the room, accessible through a few taps on a keyboard.

    Patterico (bad89b)

  164. Just saw your previous comment. Hope all is OK.

    The question will still be here when you get back, so no hurry.

    Patterico (bad89b)

  165. My girlfriend’s father just had a heart attack.

    Fantastic fellow. Ex WW2 Royal Marine Commando. Married to the same woman for 50+ years. Friendly and level-headed. Etc. Whether you agree with me or not, you’d love him.

    I need to go for a bit to lend what support I can. In the meantime, if you’re Christian or religious your prayer would be appreciated. If not, your best wishes are too.

    Christoph (92b8f7)

  166. *grandfather

    Christoph (92b8f7)

  167. Best wishes and I’m sorry to hear it.

    Patterico (bad89b)

  168. He will be in my prayers.

    DRJ (74c23b)

  169. To the rest: it seems after some poking around that the ICJ’s decision in Avena articulates a standard similar to what Christoph advocates. The Avena case was not around when I did my brief; it could be all the courts assumed a violation for the sake of argument because they all denied relief on prejudice grounds.

    Patterico (bad89b)

  170. Here is Medellin’s petition. I have read a few pages. It claims that he told officials he was a Mexican citizen.

    Whether that’s true is another matter. But that’s his claim.

    Patterico (bad89b)

  171. It also indicates that before 2004 Article 36 was not considered judicially enforceable. This was the state of the law when I opposed a habeas, and it was clear.

    Avena has complicated matters.

    I think this is an interesting issue. But I have to go to sleep.

    Patterico (bad89b)

  172. Christoph, that’s terrible news. I hope he recovers fully, and you will be in my thoughts tonight.

    aphrael (db0b5a)

  173. That means a lot, more than you would guess. It means quite a bit from each of you.

    I just got off the phone with my girlfriend (in Australia) and she told me earlier today she and her family were joking about his having a quadruple bypass operations 10-years to the day ago and being told by the doctors this would give him another 10-years. This doesn’t seem funny now, as you can guess.

    So she’s off to the hospital and I pray her doctors were wrong a decade ago. I also pray to thank them for being there for him when he needed them. I met him for the first time earlier this year and he did indeed strike me as a GREAT man.

    In any case, if there is a God and I certainly hope so, he is the sort of man who deserves a reward for a life well lived. Not only did he stand the line and protect freedom for those who came after him, he lived his life well to this date. A loving man I wish (not hyperbole, fact) I had his virtues.

    I intend on developing a few of them. Good night and thank you for your prayers.

    Christoph (92b8f7)

  174. Patterico, food for thought when you wake up. I think you’ve more or less come around to accepting that ICJ accepts my looser interpretation of notification obligations under the Treaty. I also think you’d agree that a U.S. court would be unlikely to insist on imposing a stricter interpretation on U.S. and state agencies. No good reason to; the above as I outlined it is fine.

    But just a hypothetical thought experiment on the words “without delay”.

    Pretend there is a law that says a person has to notify Child Protective Services “without delay” if a child is being abused.

    Does this mean:
    a) they have to notify as soon as the abuse occurs
    b) they have to notify as soon as they become aware abuse is occurring

    I think any court would interpret the correct response as b.

    Consider this alternate scenario: Let’s say there is a regulation of a law that says if a person inadvertently comes into possession of child pornography (while surfing the net for something else like adult pornography for example) that they have to notify the authorities “without delay” to avoid being charged with possession of child pornography.

    A couple rents an adult videotape for a week from a movie store that unbeknown to them contains the image of someone under 18-years old because some sicko has swapped the tape. However, they don’t watch it immediately, they watch it together a couple days later. Were they required to notify police:
    a) immediately upon renting the tape; or
    b) when they became aware of the criminal content?

    I think the question answers itself and the Vienna Convention always had to be interpreted the same way as far as the phrase “without delay” is concerned.

    Christoph (92b8f7)

  175. The following language,

    if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner

    seems written with the thought that whatever the precise status of a foreign national who is arrested, imprisoned, in custody or otherwise detained, the right to consular notification upon request is guaranteed.

    The language also would seem to permit that at whatever stage of the eventually-condemned man’s arrest, trial &tc., they may avail themselves of consular notification. If the non-U.S. citizenship status becomes known at whatever point in this timeline, the requirement that the receiving state inform him/her of their right to consular notification then becomes an issue. The laws of physics, of common sense, have to apply here.

    Consul-At-Arms (f4574f)

  176. The laws of physics, of common sense, have to apply here.

    That’s right. But, note how there is no specific remedy if the consulate is not notified. And more importantly, note how the appellant suffered absolutely no prejudice.

    dave (dcf56d)

  177. CAA, you’re misreading that. “he” in this case is the Consul not the arrestee or detainee. What this is saying is the Consul can request the receiving State’s authorities notify “him” when one of his citizens is in custody. Most Consul’s want this, some don’t care I guess. Further, if you read the whole article, some Consul’s request to be notified even against the wishes of its citizen-detainee… and the receiving State would have to abide by the Consul’s wishes even in that case.

    Christoph (92b8f7)

  178. And if the guy came illegally, is Mexico really the sending state?

    Scott Jacobs (425810)

  179. For the purposes of the Treaty, yes. I believe it’s referring to sending of a Consul anyway.

    Christoph (92b8f7)

  180. And again, in the interests of fairness, I find it very easy to blame Medellin for his rapes and murders and want him to face the death penalty… I find it more difficult to fault him for being an illegal immigrant at 6-years old.

    Christoph (92b8f7)

  181. I’ve primarily considered this from a legal standpoint but from a practical standpoint, it’s an exercise in futility.

    Consular notification allows the sending state to assist its citizens in foreign courts, e.g., in American courts. The Mexican government’s position in Avena and Medellin is that, once notified, it would help a Mexican citizen arrested in the US get in touch with his family and make sure he has an attorney. I assume the Mexican government would also assist if there were language or communication problems.

    From a practical standpoint, Medellin’s family lived in the US and was undoubtedly aware of his arrest. He had counsel as this was a capital case, and it’s likely counsel was appointed for him since I assume he was indigent. I’ve seen nothing to suggest Medellin didn’t speak English well, especially since he was raised in the US, but if he didn’t Houston has a ready supply of competent Spanish interpreters.

    Thus, even if there were a technical violation regarding consular notification, I don’t see a practical problem from Medellin’s standpoint. There is nothing the Mexican government could or would have given him that he didn’t already receive.

    DRJ (74c23b)

  182. So, Patterico?

    a,a
    a,b
    b,a
    b,b

    Those are the possibilities (#176).

    Christoph (92b8f7)

  183. First off, thank you Patterico for following this story and for taking the time to get the facts.

    I did not read all 184 comments yet – but got to a good bit of them. Small point of clarification for post 183 – yes Medellin speaks and writes fluent English. He, as has been mentioned here, came to the USA illegally with his family when he was 6 years old and subsequently attended grade school and middle school here before dropping out in the ninth grade.

    His main reason for the last ditch appeal is to avoid the death penalty. His greatest hope is to be extradited to Mexico (who, like Canada, has no death penalty). Some of Medellin’s writings from prison seem to insinuate that he believes he would be hailed like a returning hero if he could just contact his ‘mother country’ and return to ‘his brothers and sisters’.

    Here is a link to one of his posts on the internet wherein he introduces himself in hopes of soliciting ‘pen pals’. If anyone takes the time to look it up I want to call *particular* attention to the way Medellin describes himself in the first paragraph. http://www.ccadp.org/josemedellin.htm

    And I quote “Hi ! People of the world, the outside world I have not known in so long. My life is in Black & White like the old Western movies. But unlike the movies the good guys don’t always finish first.
    My name is Jose Medellin, I am currently being held on Death Row, in the State that is at the top of the list for Death Row population, 453, executions this year: 26, as of 9/14/99. The State and government that also executes its children, its retarded, its poor. This state is the Lone Star State of Texas ! ”

    Notice he says first that “my life is in Black & White like the old Western Movies”

    The name of the gang with whom Medellin savaged and murdered those girls so long ago? The Black & White.

    And here’s another interesting quote “The crime I am charged with matters not at this time. ”

    Also, finding the facts and details of the crime with which he was charged which, in his opinion “matters not at this time” – is not easy and takes a bit of digging. The history can be found here –> http://www.murdervictims.com/Voices/jeneliz.html

    Legal & political technicalities notwithstanding the facts remain. Medellin did not consider himself to be a Mexican national at the time he savagely (please, go read what he confessed) raped and murdered two girls. He did not claim any allegiance to the Mexican nation until AFTER he had received his Miranda, was provided attornies, received trials *and* appeals.

    I understand that Mexico, like Canada, will try to intervene on behalf of its citizens when they are arrested in foreign countries. But what has happened in this situation is a pissing contest. For a beast like this Medellin character to manipulate the justice system of the USA (world renoun for bending over backwards to protect the ‘rights’ of the accused) is an abomination to humanity.

    My apology for such a long post, thank you for the site

    Melinda DuClos
    Jag & Mel Rock & Rant, http://www.NekkidRadio.com

    Melinda DuClos (ddbaed)

  184. And again, in the interests of fairness, I find it very easy to blame Medellin for his rapes and murders and want him to face the death penalty… I find it more difficult to fault him for being an illegal immigrant at 6-years old.

    Good for you. Same goes for me. So let’s make a deal: we’ll treat him just as if he were a citizen. And execute him with no further judicial review.

    Patterico (bad89b)

  185. Melinda, I read your link. That’s just about the most brutal crime I’ve ever heard about in my 52 years of life. And I work in court.

    It reminded me of when I was about 21 years old, with conflicted views of the death penalty, and I said to my father, “Daddy, I’m not sure about the death penalty. I don’t think it’s a deterrent.” And he said, “It’s not. But don’t you realize, we’re better off without these people?”

    Daddy was right. I’ve got to go cry now.

    lc (1401be)

  186. So, does Medellin have a Scandinavian wife yet? That seems to be de rigueur on death row these days. Check out Urbangrounds for the posts of the people who knew him — he was heartless then and im sure he is heartless now and the many female pen pals, who loooove him. Yech.

    dave (7871a3)

  187. I must apologize to all and especially to lc for posting that link without a warning regarding the brutality. Having worked in the courts, as they say, “you’ve seen it all”

    My career was spent as an Emergency Nurse and the crimes even horrified me.

    I do, however, have a solution for the Mexican government who has taken issue with our failure to notify their Consul that one of their nationals was arrested here in the US. Each and every time a Mexican national is arrested from this moment forward – let’s make it a point to contact the Mexican Consul and insist they send a representative *each and every time* to interview and assess the situation and predicament of their citizen.

    I wonder how long it would take them to re-consider this position.

    Melinda DuClos (ddbaed)

  188. You owe no apologies, Melinda.

    lc (1401be)

  189. Your point is unsound, Melinda: The USA has no right to dictate to Mexico how it use its Consular assets and you should know this. I could get in a deeper analysis and mention various reasons your point doesn’t hold water, but it really is this simple. The notification provision exists for the benefit of and not to the detriment of the sending State: It is up to it what to do with notification when it receives it.

    Of course, I would assume Mexico as would the United States would want to help out its citizens to the extent of seeing they are treated fairly under the receiving State’s laws.

    Patterico, I notice you were beating me about the head verbally trying to get me to answer a hypothetical and when I did, you basically concluded the ICJ saw it the same was as I said all along.

    Yet you haven’t answered my hypothetical thought experiment. It’s not relevant to the Jose Medellin case, it just touches on a point you made a big deal of the words “without delay”. I’m not going to use your answer to attack your position on Medellin because your position is clear and the ICJ Avena decision tends to support my interpretation, apparently.

    But I’m curious, as a practical matter, how would you think a court would interpret “without delay” in the hypothetical scenarios I devised. My curiosity is genuine because I really don’t know what a U.S. court would do. It seems to me ICJ took a practical interpretation and I think that would be the interpretation in a Canadian court too. Our justices are nothing if not pragmatic.

    Would a U.S. court really interpret a law written in that way to impose a burden on people that was physically impossible? Or would the “without delay” period begin at the first time where it is possible for the affected party to take the required action?

    Christoph (92b8f7)

  190. And Melinda, thanks for sharing your experience, this link, and a heads up on it. I’m going to see what you linked to now.

    Christoph (92b8f7)

  191. “I’m not going to use your answer to attack your position on Medellin because your position is clear and the ICJ Avena decision tends to support my interpretation, apparently.”

    What I mean is it’s clear we disagree on the underlying law in the Medellin case and I agree with WLS, you take Texas’s position. As far as not using your explanation of how a U.S. court would interpret “without delay” language, I’m not going to use this to argue the point further since it seems to have been settled with Avena that a looser interpretation is warranted and that’s to the benefit of the USA and Texas anyway so I don’t need to make a further point on this.

    Still very curious how a U.S. court would interpret these two words and whether ICJ really did, according to my theory, interpret them much more reasonably than a U.S. court would… or would a U.S. court interpret them similarly.

    I wasn’t trying to evade your hypothetical up above; I just couldn’t see how these words could be interpreted differently.

    Christoph (92b8f7)

  192. Melinda, not to put too fine a point on what I’m sure is a well-written and touching website, but it’s very long and if the author wants me to read the entire story they’ll have to put black text on white screen.

    I’m not going to read a huge article with dark green text on a dark green textured background.

    For what it’s worth, I’ve read other accounts and seen news stories. What was done to these two girls is horrible and I have no defense of it.

    Christoph (92b8f7)

  193. @ Christoph

    CAA, you’re misreading that. “he” in this case is the Consul not the arrestee or detainee. What this is saying is the Consul can request the receiving State’s authorities notify “him” when one of his citizens is in custody. Most Consul’s want this, some don’t care I guess. Further, if you read the whole article, some Consul’s request to be notified even against the wishes of its citizen-detainee… and the receiving State would have to abide by the Consul’s wishes even in that case.

    Read it again:

    if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner

    There’s really only one person, one “he” in that passage, the detainee. I don’t think you can fairly describe either “the competent authorities,” “the consular post,” or “that State” as a “he;” only the detainee fits grammatically, at least in English anyway.

    In my work as a consular officer, most of the police officials I meet already seem to know about this; I’ve never really asked them, when the notify me of an American’s arrest/detention/imprisonment, whether or not the Amcit has requested consular notification. So I couldn’t swear to the fact that they’re getting the Amcit’s permission to notify me. And I haven’t yet had a case where the Amcit didn’t want the consular post to know about it.

    In cases where the Amcit is a fugitive from the U.S., there’s a different, law enforcement, notification mechanism underway, which is another issue entirely, having to do with extradition/deportation.

    Consul-At-Arms (334bba)

  194. @ Scott Jacobs (#180)

    “And if the guy came illegally, is Mexico really the sending state?”

    Well, they’re certainly not the “receiving state” are they?

    Seriously, the convention isn’t written to consider how someone entered a country so much as use some kind of standard language to differentiate between their “to” and “from” locations. Even if they came to the U.S. (receiving state) from Mexico (sending state) at age 6.

    Consul-At-Arms (334bba)

  195. Okay, I’ve read it again and I think you may be right. I’m not sure, but you might be. I thought DRJ may have said otherwise, but if so, perhaps she was wrong too.

    Christoph (92b8f7)

  196. I get that a lot, Consul-at-Arms. I must have a deep voice.

    As for #197, I’ve been wrong many times (and I think this topic has been especially complicated) but I don’t know what I might have said that contributed to Christoph’s pronoun problem.

    DRJ (67ced6)

  197. It was on a different thread, and it may not have been you that said it, DRJ. I said I wasn’t sure in 197. Anyway, I was definitely wrong on this point it seems.

    Christoph (92b8f7)

  198. I misinterpreted your comment #73, DRJ combined with my misreading the Convention lead me to make this error. This was my error and not yours. I apologize.

    It’s a minor point and doesn’t change the major arguments I’ve made in this thread.

    Christoph (92b8f7)

  199. @DRJ
    I hope I didn’t sound too surprised, it’s more that I’m laughing at myself for making an assumption.

    Consul-At-Arms (f4574f)

  200. Perhaps justice will catch up to the sadistic and sociopathic thug Jose Medillin on August 5.

    While there nas been some lip service paid in Washington to interference with the execution, this is for foreign consumption. The Governor spoke for Texas and a majority on the Supreme Court spoke for America.

    It is time that we stopped listening to an assortment of foreign busybodies, bleating bishops, and assorted thug-huggers.

    Perhaps if certain church officials paid more attention to the safety of their acolytes they might have less time to worry about a few minutes of discomfort for subhuman vermin such as Jose Medillin.

    Art Downs (b4ba83)

  201. Okay, so far I have heard that he was 3, 6, and 9 when he moved here with his family. Which one is it? You can go to several websites(which I have done) and each one will state a different age. The death penalty is morally wrong, we say that it is wrong to murder another human being, but then, to punish these offenders, we go ahead and murder them. Because it’s on the government’s orders, that makes it okay? NO IT DOES NOT MAKE IT OKAY OR JUST!!! Nothing will be gained from ending his life, nothing, except more pain for his family. I don’t think that the victims would want someone else’s family to have to endure the pain that their families went through…

    Marisa H. (d6a154)

  202. You need to learn the difference between “murder” and “kill.” And yes, there is a difference. Legally sanctioned judgment is not murder, all shouting to the contrary.

    steve miller (0fb51f)

  203. Well said and mega kudos to you Marisa. These neocons are oblivious to the suffering of mistreated and abused so-called sociopathic murderers. I’d go one step further and release Hispanic and blacks who are incarcerated and even the whites like Charles Manson who are political prisoners of our fascist goverment.

    I realize some people actually think it is hypocritical to call for end of punishments and death penalties because the left turns a blind eye to the so-called innocent aborted children and even sometimes call it murder, especially when a so-called child is born viable and could live on its own. But if a woman feels that clump of tissue with a soul is a burden, why should the state try to intimidate her when she knows what is right for her? The USA should think hard about emulating the enlightened policies of the Peoples’ Republic of China and limiting the number of children a couple can breed. We must think of Gaia and the consequences of too many people making demands on our limited resources, ever increasing the effects of AGW. AS for state-sanctioned murder, is it not far better that 1000 go free in order that an innocent man not suffer? For that matter isn’t it all situational ethics in any case? Let he who is without sin cast the first stone! Imagine the money saved if we do way with prisons, parole officers, prison guards, corrupt DEA lackeys and judges, etc. The state should also supply drug users with what drugs they want and need and that alone would mean no need to be forced to steal and kill for the needed fix.
    I’m very happy that you at least are ok with saving the life of someone, through no real fault of his own, happens to kill someone in your family. Afterall,the killing was probably a blessing and merciful need. And then we can also agree that in nature the stronger being adapts and survives. So the taking of a life may well be just weeding out those not strong enough to fight off an assault and consequently a net benefit for society and Mother Earth. Besides victims’ families need to suck it up and show compassion by turning the other cheek. Peace out and God Bless you and your kind. If more were like you,we never would have brought about the unnecessay deaths of Saddam and his two relatively innocent sons, not to mention millions of Iraqis. If you belong to Code Pink, say hi to the great Cindy Sheehan and tell her to keep up thegood work. We care about all of you with absolute moral authority. Perhaps Obama will support a world court and bring this sadly genocidal administration to justice.

    madmax333 (0c6cfc)

  204. Marisa H. wrote: Nothing will be gained from ending his life, nothing, except more pain for his family.

    Medellin’s family is being punished by nobody but him.

    He is the one that put his life in jeopardy by joining a gang. He is the one that chose to rape those girls. He is the one that strangled them to death.

    I don’t think that the victims would want someone else’s family to have to endure the pain that their families went through…

    You got that partially right, Marisa. You don’t think.

    However those girls got in that situation, they didn’t deserve to be raped and killed. Medellin, OTOH, deserves both. But he will only be killed.

    There is one person who could have prevented the devastation of (at least) dozens of lives, and chose not to. That person is Jose Ernesto Medellin.

    It’s not the families’ fault. It’s his fault.
    It’s not the state’s fault. It’s his fault.
    It’s not society’s fault. It’s his fault.

    I don’t want to cause pain to my family. So I’ve never raped and murdered anybody and placed myself in a position in which I might face execution. And it’s not as hard refusing to be a murderer as you would like to believe.

    L.N. Smithee (ecc5a5)

  205. I don’t think that the victims would want

    They don’t WANT anything.

    Because they are dead.

    Because Jose killed them.

    Scott Jacobs (425810)

  206. I believe Medellin’s execution is set for tonight in Huntsville, although there is a pending appeal before the Supreme Court based on objections by the World Court (International Court of Justice). In addition, tropical storm Eduoard made landfall this morning on the Texas Gulf Coast and there is heavy rain in the Huntsville area. I don’t know if that will impact the execution but I think it’s more likely to affect the protesters than the authorities.

    DRJ (9d1be2)

  207. One definite plus of his execution is that he will not have any chance to murder yet again.
    I’m sure Marisa is sincerely devastated. I wouldn’t doubt there are women out there who would have found Jose enchanting as a jail bird on death row.

    Really don’t understand the mindset that garners sympathy for these psychopaths or at least asocial predators.

    I recall one mental patient years ago in suburban Philly who murdered his pregnant wife(dead fetus also) and stabbed his daughter in the eye. Female staff always had huge sympathy for his plight as a widower who claimed to have heard voices telling him to do it. AS far as I know, he is still with us if not finally released from mental facilities by a sympathetic shrink.

    madmax333 (0c6cfc)

  208. Also, in response to some people’s claims that “so-and-so wouldn’t want another family to suffer”, let me state, for the record…

    The following should be read at sentencing for whoever killed me.

    Fuck that. Some fucker killed me. My family had to go through hell because of my untimely and violent death, and frankly I can’t think of a better punishment to not only put to death the person responsible, but to make sure they know that it was their decision to kill that will cause their family the exact same pain. In fact, I’d like them to have to watch – especially their parents.

    Because apparently, they screwed up somewhere.

    Scott Jacobs (425810)

  209. I read about this case and I absolutely hate it. I think he deserved to be executed and my heart goes out to the victims’ families. However, the US is the leader of the free world. Our country signed off in 1963 the Treaty of Vienna Convention on Consular Relations to protect our citizens abroad. How can we as a country violate that treaty and expect other countries to abide by it? If one of our citizens travels to another country that practices (for arguments sake) the Sharia law and is sentenced to death without notifying our Embassy or Consulate, how can we hipocritically demand that country to abide by the treaty if we do not honor the treaty ourselves? We as Americans count on the protection of our Consulate when we travel to a different country.

    Nora (d1990a)

  210. Has everyone forgotten The Immigration Reform and Control Act (IRCA) of 1986? He would have been 11 then and therefore been given U.S. citizenship.

    russell888 (0d608e)

  211. They all deserve to die, they should die like Elizabeth and Jennifer died, raped, beaten and strangled to death.I’m sorry but I feel no pity for these guys, I’m glad there off the streets and soon gone for good, I’m a mother too with daughters and I thank God this did not happen to my girls, I can’t imagine how I would have endured this, my heart go out to these girls parents.Parents you are always in my prayers.

    Sylvia (3e069d)

  212. How can we as a country violate that treaty and expect other countries to abide by it?

    It isn’t automatic… you have to ask.

    he didn’t until LONG after it mattered.

    And again, do you think it would have made a difference?

    Scott Jacobs (fa5e57)

  213. Fry Jose.

    May you live the pain you inflicted on those two girls for eternity.

    We laugh at your pitiful country, which sees nothing wrong with helping its criminals cross the border and ignores the mass exodus of its own citizens only to cry ‘foul’ when it has a chance to snub it’s better neighbor.

    May your miserable life serve as a warning to all your benighted countrymen to think some “treaty” is a get out of jail free card.

    I hope that the lethal injection actually fails to anesthetize the recipients, thereby ensuring you feel the drugs burning your veins before paralyzing your worthless heart.

    May your crimes be visited upon you many times over.

    May you reap what you’ve sown.

    Josh (e1b3cb)

  214. Enough already with all the diplomatic mumbo jumbo! He raped and murdered two young girls. He should have been hung from an oak tree a long time ago.

    Wilbur Post (e8749c)


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