Saturday, August 9, 2008

Joe Tourist and the Medellin Case

I have no sympathy for José Ernesto Medellin who had been convicted and sentenced in Texas state court for murder. Medellin was 18 when he and five fellow gang members raped Elizabeth Pena, 16, and Jennifer Ertman, 14, then beat and strangled them. On Tuesday, at 9:57 p.m. (0257 GMT Wednesday), he was killed by lethal injection in the Huntsville death chamber.

But this was no ordinary execution. This and the cases of 50 more Mexican nationals sitting in our death rows have possible repercussions for the American traveling public going abroad.

David Fathi, US program director at Human Rights Watch says, “The execution of foreign citizens in violation of an ICJ order will place Americans abroad at risk. If the US disregards its legal obligations in this case, it will be hard pressed to argue that other countries should respect the rights of US citizens under arrest.”

Former Ambassador Jeffrey Davidow (retired) who served previously as U.S. ambassador to Zambia, Venezuela and Mexico in the Reagan, Clinton and both Bush administrations recently wrote in the LA Times why we should care about what happens to 51 the Mexican nationals on death row, “this case is not about the United States' or Texas' rights to implement criminal laws. This case is about our unequivocal treaty obligation to comply with an International Court of Justice judgment and the Vienna Convention, which has allowed diplomats such as myself to save hundreds if not thousands of American lives. He further writes:

"[…] we now find ourselves on the brink of an irrevocable violation of the most important treaty governing consular assistance for our citizens detained in other countries. A failure to comply with this most basic of treaty commitments would significantly impair the ability of our diplomats and leaders to protect the interests -- individual and collective -- of Americans abroad. Were the tables turned -- American citizens arrested abroad and denied consular access, with an ICJ judgment requiring review of those cases for prejudice, and another nation refusing to comply -- our leaders would rightly demand that compliance be forthcoming."

National Lawyers Guild’s president and past presidents understood what is at stake and prior to the execution have written to Governor Rick Perry of Texas asking him to stay the execution until Congress acts on the Avena Case Implementation Act: “The ICJ ruled that the Convention had been violated and called for review of the convictions of individuals obtained in the absence of this notice. The importance of this legislation is enormous, as failure to implement the Avena decision in the Medellin case has serious implications for Americans traveling, working, and volunteering abroad. The security of Americans volunteering abroad—as missionaries, aid volunteers, and private citizen ambassadors—has been placed at risk by U.S. noncompliance with Vienna Convention on Consular Relations obligations. American citizens working abroad are at times detained by oppressive or undemocratic regimes, and access to the American consulate is critical to their safety, and to the United States’ ability to support them and provide for their needs.” You can read their letter to Governor Perry here and the letter to the Senators here (PDF).

José Ernesto Medellin and the other Mexican nationals who are in death row are obviously not very nice people. And yet, as Ambassador Davidow argues, protecting them protects us. Here’s why.

Let’s say Joe Tourist from Texas went traveling to see an old friend in some Central American country. On his way to his friend’s barrio, the rental car he was driving hit and killed a man in a road accident. His friend had no phone in his house, and only his ex-wife knew that he was traveling overseas for the next eight weeks. He landed in jail with no legal representation and minimal language capability to understand the case against him. No American consular official was informed of his incarceration. It was 10 weeks before the U.S. Government was even aware that he was in jail. By then, he had been found guilty by the local court. Swap the road accident with charges of spying or espionage, murder, kidnapping or a host of other potential crimes. Think this is a far-fetched scenario? Think again. We have broken the international golden rule. Consular notification and access, a given in over 40 years under the Vienna Convention on Consular Relations of 1963 (VCCR) had received a beating and we could be in for a rougher ride.

The State Department states that consular notification and access are mutual obligations. In general, American law enforcement officials should permit a foreign consular officer the same access to their own national in the United States that you would want an American consular officer to have to an American citizen in a similar situation in a foreign country.

In 1969, the United States, upon the advice and consent of the Senate, ratified the Vienna Convention on Consular Relations (Vienna Convention or Convention), Apr. 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (Optional Protocol or Protocol), Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S. No. 6820. The preamble to the Convention provides that its purpose is to “contribute to the development of friendly relations among nations.” 21 U. S. T., at 79; Sanchez-Llamas, supra, at 337. Toward that end, Article 36 of the Convention was drafted to “facilitat[e] the exercise of consular functions.” Art. 36(1), 21 U. S. T., at 100. It provides that if a person detained by a foreign country “so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” of such detention, and “inform the [detainee] of his righ[t]” to request assistance from the consul of his own state. Art. 36(1)(b), id., at 101.

Last March, the U.S. Supreme Court in affirming the decision of the Texas Court of Appeals on MEDELLIN v. TEXAS (No. 06-984) says:

“Petitioner José Ernesto Medellin, who had been convicted and sentenced in Texas state court for murder, is one of the 51 Mexican nationals named in the Avena decision. Relying on the ICJ’s decision and the President’s Memorandum, Medellin filed an application for a writ of habeas corpus in state court. The Texas Court of Criminal Appeals dismissed Medellin’s application as an abuse of the writ under state law, given Medellin’s failure to raise his Vienna Convention claim in a timely manner under state law. We granted certiorari to decide two questions. First, is the ICJ’s judgment in Avena directly enforceable as domestic law in a state court in the United States? Second, does the President’s Memorandum independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules? We conclude that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. You can read the majority decision here.

In his dissenting opinion, Justice Breyer writes: “Were the Court for a moment to shift the direction of its legal gaze, looking instead to the Supremacy Clause and to the extensive case law interpreting that Clause as applied to treaties, I believe it would reach a better supported, more felicitous conclusion. That approach, well embedded in Court case law, leads to the conclusion that the ICJ judgment before us is judicially enforceable without further legislative action. " He further writes:

[…]Beyond the fact that a remand would be the normal course upon reversing a lower court judgment, there are additional reasons why further state-court review would be particularly appropriate here. The crime took place in Texas, and the prosecution at issue is a Texas prosecution. The President has specifically endorsed further Texas court review. See President’s Memorandum. The ICJ judgment requires further hearings as to whether the police failure to inform Medellin of his Vienna Convention rights prejudiced Medellin, even if such hearings would not otherwise be available under Texas’ procedural default rules. While Texas has already considered that matter, it did not consider fully, for example, whether appointed counsel’s coterminous 6-month suspension from the practice of the law “caused actual prejudice to the defendant”—prejudice that would not have existed had Medelln known he could contact his consul and thereby find a different lawyer. Id., at 60, ¶121.

Recognizing the implication of this case beyond our borders, Justice Breyer further writes: “They unnecessarily complicate the President’s foreign affairs task insofar as, for example, they increase the likelihood of Security Council Avena enforcement proceedings, of worsening relations with our neighbor Mexico, of precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation’s reputation abroad as a result of our failure to follow the “rule of law” principles that we preach.” You can read his entire opinion here.

What's the problem? A convicted murderer is dead and as one online post says, "Texas rocks!" Besides the anti-immigrant flavor in some threads, the prevailing sentiment seems to be that no one, not the ICJ or the UN tells Texas or the United States what to do. But the wrinkle, if you can call it that, is more than who's telling who. According to the Department of Commerce, over 40 million Americans traveled overseas in 2007, with Mexico the destination for over 5 million travelers and Canada for over 3 million Americans. Preliminary data from the first four months of 2008 indicate that the number of Americans traveling overseas has gone up by 3.7%, slightly up from the previous year. The survey also indicates that 42% of Americans travel overseas alone with only 13% in prepaid tour packages.

Although a good number of us traveling overseas sometimes have the mistaken notion that our American citizenship protects us overseas (it doesn’t, see Non-Portability of American Rights), that misconception is mitigated by the fact that under the VCCR, foreign governments do notify our embassies and consulates when an American is arrested in a foreign country. Due to Mandatory Notification applicable to some countries and jurisdiction, it is also possible that even if Joe Tourist does not want Uncle Sam to know that he is in jail, most often than not, an American Consul will be notified of the arrest.

I should note that our consular officials cannot sprung Joe Tourist out of jail if he is incarcerated in a foreign country, but they may assist in arranging legal representation, monitor the progress of the case, and seek to ensure that he receives a fair trial (e.g., by working with the detainee's lawyer, communicating with prosecutors, or observing the trial). Consular Officers may speak with prison authorities about the detainee's conditions of confinement, and may bring the detainee reading material, food, medicine, or other necessities, if permitted by prison regulations. A consular officer frequently will be in touch with the detainee's family, to advise them of the detainee's situation, morale, and pass other relevant information.

So here’s the prospective national migraine that the Medellin case has brought us: What are we to do if or when other countries (especially the not so friendly ones) start deciding they do not have to notify American consular officials nor provide consular access when one of our own is incarcerated overseas? If you think they'll send in the Sixth Fleet to the rescue you'll be sorely disappointed. The ugly scenario? A son or daughter jailed in a foreign country, no one is told about it, and no one is expected to visit -- American consular officials cannot help our citizens overseas if they don't know when Americans have been thrown in jail. Or on instances when a country refuses these officers consular access to visit the Americans in jail - do we then turn back and complain to the ICJ about non-compliance with the VCCR??

Forty million Americans traveled overseas last year and the number is going up this year. That's a lot of people in a lot of foreign places, subject to foreign laws that may have little resemblance to ours. Kinda worrisome, right? If I get into a pickle overseas, I would like to see a representative of my government; only now there's a dark cloud out there. Will I? As possible remedy, H.R. 6481 also known as the Avena Case Implementation Act of 2008 was introduced by Rep. Howard L. Berman in Congress last month. Its aim is "to create civil action to provide judicial remedies to carry out certain treaty obligations of the United States under the Vienna Convention on Consular Relations and the Optional Protocol to the Vienna Convention on Consular Relations."

When I last look, it had been referred to the House Committee on the Judiciary (7.14) and todate still only has three cosponsors. Go figure. In any case, if you have international travel plans or if you have family members and relatives going overseas in the next 50 years, you might decide to contact your Congressional representatives to help make them care.

For the overworked American Consul out there, good luck dude (or dudette); this is going to make your already hard job much harder. I suggest you also contact your representatives just don't use government work time or resources (work computer, letterhead, franked envelope, etc) when you do it, and please indicate clearly that you are writing as a private citizen not as an official of the U.S. Government.

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