So see if you can follow this.
George W. Bush, the imperial president of left-wing lampoon, orders his National Security Agency to intercept enemy communications without judicial warrants -- something the courts have repeatedly ruled presidents have inherent authority to do -- and the left decries the purportedly criminal sundering of our Constitution.
Yet, the same George W. Bush issues a diktat declaring unto himself the power to rewrite state law and command state judges -- authority no president has ever had in our federalist system of divided powers -- and the left falls silent, and least when its shock troops are not sheepishly applauding.
What gives? That’s easy. The commentariat is currently dominated by post-sovereign activists the Hudson Institute’s John Fonte has brilliantly labeled “transnational progressives.” These folk, it turns out, have found something that deranges them even more than their contempt for President Bush: democratic self-determination … especially when those benighted Americans, in Cro-Magnon redoubts like (must we utter the word?) Texas, have used their liberty to enact and enforce the death penalty.
That is the reality beneath the bushels of chatter heaped on Medellin v. Texas, a gruesome case in which the United States Supreme Court heard arguments last week. Legally, Medellin is complicated, taking us on detours through such esoterica as consular notification treaties and the law of judgments (a corpus addressing which rulings must be upheld). But factually and, more to the point, politically, it is as simple as it is savage: transnational progressives do not like the death penalty, and they will support any edict that impedes execution, no matter how despotic, and no matter that the despot in question is the bane of their existence.
It was June 1993 when fourteen-year-old Jennifer Ertman and sixteen-year-old Elizabeth Pena fatefully decided to take a shortcut home along a railroad trestle. There, they encountered Jose Ernesto Medellin and other members of a vicious Houston street gang. Medellin and his fellow savages repeatedly raped the girls, murdered them by strangulation, and then discarded their bodies, which were finally found days later.
Medellin was soon arrested. He was eighteen at the time and had lived most of his life in the United States. The arresting officers gave him standard Miranda warnings, advising him that he was under no obligation to speak with them, that any statements he made could be used against him, and that, whether or not he chose to speak, he had a right to have a lawyer -- paid for by the state -- present and assisting him. As many defendants do, he waived those rights. Within three hours, he had confessed to, among other things, murder in the course of a sexual assault. The people of the sovereign state of Texas, through their elected representatives, have made that crime a capital offense. Given that the death penalty is expressly mentioned in the Constitution -- including three times in the Fifth Amendment alone -- there is no plausible argument that Texas’s policy is unconstitutional.
Medellin, however, was a national of Mexico. Consequently, under Article 36 of a treaty known as the Vienna Convention on Consular Relations, the police were obligated to notify him of his right to have his consulate advised of his arrest. The police failed to fulfill this duty, but this dereliction was patently immaterial. The treaty says the notification should occur “without delay”; but this term does not have a clear meaning. It has been interpreted to require notice within one-to-three days, and it has never been understood to mandate that notice occur before an arrested suspect is questioned.
In fact, Justice Ruth Bader Ginsburg, one of the Supreme Court’s most ardent international law enthusiasts, conceded in a 2006 opinion that “[i]n contrast to Miranda warnings, which must be given on the spot before the police interrogate, Article 36 of the Vienna Convention does not require the arresting authority to contact the consular post instantly.” That, of course, isn’t the half of it. Unless the country involved is on the State Department's "mandatory list" (which Mexico is not), the treaty doesn’t require the police to notify the consulate at all -- at least in the first instance. It is the arrested suspect who must be notified, and only if the suspect then asks them to do so must the police alert the consulate.
In the world imagined by transnational progressives, all suspects want their governments apprised that they have been arrested for rape-murders, and all governments immediately hop to, providing boundless assistance and counsel. (It’s a wonder anyone emigrates from such efficient, compassionate regimes!) In the world we actually inhabit, though, many arrestees would just as soon not clue in their consulates to the fact that they’ve been caught committing serious crimes. The point, in any event, is not to insulate alien criminals from routine investigative procedures, like interrogation, that American citizens must endure. It is, modestly, to allow the alien to seek his government’s assistance if he chooses to and to permit that government to monitor the case, just as we want our own government to monitor proceedings against Americans arrested overseas.
Medellin was vigorously defended in the case by competent, experienced counsel. They never raised any objection about consular notification. For good reason. Treaties, first of all, are not “self-executing.” That is, they don’t create rights that individuals can enforce in courts; they are, instead, understandings between governments. Failures to honor them are a matter for diplomatic negotiation between sovereigns, not legal claims by allegedly aggrieved citizens. Even if that were not the case, moreover, the failure to provide notice had made not the slightest bit of difference in Medellin’s case. He had provided a full, bulletproof confession hours (if not days) before notice was required. Even if the police had given consular notification by the book, they would still have gotten the confession, and Medellin would still have been convicted and sentenced to death.
Yet, long after the proceedings against him, grasping at any straw that might forestall execution, he filed a habeas corpus petition claiming to have been prejudiced by the lack of notification. This was, as the courts of Texas found, a ludicrous contention. Naturally, that did not deter the vaunted “international community,” which -- when not defending genocide and suicide bombing (er, I mean, “resistance”) -- is beside itself that we barbarous Americans still put murderers to death (though, to give us some credit, we don’t stone or decapitate as they do in parts of the world where the Religion of Peace holds sway).
One of the international community’s truly enlightened members, Mexico, does not have a death penalty -- though it does have many death causers, several of whom, like Medellin, are awaiting execution for murder convictions in the United States (murder, evidently, being another one of those jobs Americans won’t do). Our southern neighbor has thus long been upset that its killers fare worse in U.S. courts than they do at home.
In this instance, Mexico also had a hook. In 1969, in addition to the Vienna Convention, the United States ratified an “Optional Protocol” that made the UN’s International Court of Justice (which portentously calls itself “the World Court”) the final arbiter of consular notification violations. Again, this was not done with the expectation that individuals could enforce rights. The purpose was political: to give sovereign nations a forum to ratchet up pressure on rogues, just as the U.S., for example, had availed itself of the opportunity to shine an international light on Iran when it took American hostages in 1979.
Nevertheless, in the ensuing decades, transnational progressives have labored to alter the bedrock assumptions of international law, including the concept that treaties are diplomatic compacts, not Bills of Rights. And they have been making considerable inroads. Riding the wave, Mexico sued the United States in the World Court and (surprise!) won by a vote of 14-1 -- with international jurists, who hale from such human rights bulwarks as China, Egypt and Sierra Leone, ruling that the United States had treated its detainees shabbily. As if this weren’t rich enough, the tribunal further presumed to order the United States to review and reconsider the convictions and sentences of 51 Mexican nationals on death row.
Bear in mind: the World Court hears disputes between countries. The parties in this particular case, which is called Avena, were Mexico and the United States, not Medellin and the other murderers. And our treaty commitment was merely to permit the World Court to determine whether a country was in compliance with its consular obligations; we did not empower it to order American courts to remediate individual defendants. Further, it has long been the law that even core American constitutional rights can be waived if a defendant fails to raise them at trial. If the Avena ruling were binding, it would mean a defendant could waive claims that he’d been deprived of his fundamental rights against, say, self-incrimination or unreasonable searches, but somehow that consular notification violations could never be forfeited -- no matter how inconsequential and no matter how many years a defendant had waited to raise them.
The World Court has no power to direct American courts this way. Yet here came Medellin, claiming its ruling required Texas courts to reconsider his case despite the state’s clear, unremarkable jurisprudence that defendants forfeit claims they fail to raise at trial.
The Supreme Court should have been able to reject this contention. But by now it was 2005: the second Bush term in which, unlike the first, seeking love from the international community has pride of place over defending American interests like sovereign self-determination.
The administration, too clever by half, tried to make the problem go away. The President prudently withdrew the U.S. from the Optional Protocol, ensuring that, in the future, the World Court could no longer interfere with American capital cases on frivolous grounds like consular notification. But with respect to Medellin and the other Mexican murderers, President Bush purported to order the states to honor the World Court’s Avena decision. Worse, ignoring the manifest impropriety of the federal government presuming to direct state governments to alter their law in the absence of any U.S. constitutional violation, the President presumed to take this momentous step not in a respectful communication to the affected states, but in a peremptory memorandum to his Attorney General.
The administration’s power play was improper on multiple levels. As noted above, treaties are not self-executing. There is only one way individuals derive rights from them: legislation by Congress vesting them with enforceable rights -- like the anti-torture laws Congress enacted in 1994 in furtherance of the UN Convention Against Torture. Congress hasn’t made the Vienna Convention enforceable, and the president’s constitutional mission is to execute the laws, not to make them.
The fact that treaties, such as the Optional Protocol, are the law of the land does not change this. A treaty cannot amend the Constitution. If President Bush struck a treaty with Canada saying the federal government would henceforth regulate purely intrastate commerce or that Miranda warnings were no longer required, that treaty could not be enforced. Those terms would be unconstitutional, and the Constitution can be changed only by amendment, not by treaty. That is to say, a president cannot obtain by treaty powers that are not already his under the Constitution. Presidents have no power to rewrite state procedural law, treaty or no treaty.
Finally, in the United States, it is the function of the judicial branch to determine what the law is. The President, given his paramount role in the conduct of foreign policy, is given broad deference in the interpretation of treaties. But, ultimately, it is for the Supreme Court to construe treaties. In its 2006 Sanchez-Llamas case, the Supreme Court rejected the World Court’s construction of Vienna Convention, ruling that states were entitled to enforce their procedural default rules. That is precisely the issue in Medellin. In the absence of implementing legislation by Congress, the President cannot adopt the World Court’s decision and, effectively, overrule the Supreme Court.
All that, though, is mumbo-jumbo. At bottom, the case is about the freedom of Texans to govern themselves, to put sadistic murderers to death if that is what they choose democratically to do, as long as they adhere to American constitutional procedures in carrying out that policy choice. Sure, it offends Mexicans, Europeans, international law professors, and a motley collection of jurists who see themselves as a supra-sovereign tribunal. But that is not a basis for the President to interfere.
The administration has made a great show of promoting democracy. Democracy, however, begins at home.