What influence international law has in US courtrooms

High Court Monday considers conflicting rights surrounding noncitizens on death row.

When police in Houston arrested Jose Ernesto Medellin on gang rape and murder charges in June 1993, he was advised of his right to remain silent, his right to consult a lawyer, and his right to have a lawyer appointed if he couldn't afford one.

But police failed to notify the 18-year-old of another right - his right to seek help from officials at the Mexican consulate.

Although Mr. Medellin had lived in the US since grade school and speaks fluent English, he had never become a US citizen. As a Mexican national in US police custody he was entitled under an international treaty to notify Mexican diplomats of his situation.

But it wasn't until four years after his arrest - long after he'd already been tried, convicted, and sentenced to death, and had his death sentence affirmed by an appeals court - that he learned of this right.

Monday, the US Supreme Court takes up Medellin's case to consider whether a violation of an international treaty can be used to challenge a conviction and death sentence in an American court.

The case arises amid an intensifying debate over how much influence international law, treaties, and foreign judgments should have in the US justice system.

Those who favor an internationalist approach say the US should honor its treaty obligations to help guarantee that those same protections will apply to Americans overseas.

Others warn that treaties may empower international tribunals to take actions that change key areas of US law. They say such changes undermine the constitutional powers of Congress and the president, and erode other government safeguards enacted by the founding fathers.

In Medellin's case, the International Court of Justice ruled that the US had breached its obligations under the Vienna Convention on Consular Relations. The ICJ ordered American judges to conduct a "review and reconsideration" of the convictions and sentences of Medellin and 50 other Mexican nationals also facing US death sentences.

Judges in Texas have declined to authorize what would amount to another level of appeal for Medellin. They have ruled that he should have raised the issue during his trial many years ago and that since he failed to do so in a timely manner US law does not entitle him to do so now. They say US law and existing Supreme Court precedent trumps the ICJ order.

Lawyers for Medellin counter that rights created by treaty are binding and judicially enforceable as a matter of US law. Treaties, like federal statutes and the Constitution itself, are the supreme law of the land and must preempt conflicting state laws, they say.

"This is about the willingness of the United States to keep its word," writes Donald Donovan in his brief to the court on behalf of Medellin. "This court must ensure that the courts of the State of Texas and other state and federal courts throughout the land comply with the legally binding international commitments that the United States has made."

Texas officials offer a different perspective. "It is beyond cavil that, as Medellin puts it, America should keep her word. But the choice of how to do so, and how to respond to alleged treaty violations, is left to the political branches of government," writes Texas Attorney General R. Ted Cruz in his brief to the court.

The Bush administration has embraced a similar view. "It is for the president, not the courts, to determine whether the United States should comply with the [ICJ] decision, and, if so, how," says the brief filed by Acting US Solicitor General Paul Clement.

On Feb. 28, exactly one month prior to Monday's oral argument, President Bush issued an executive order directing state courts to comply with the ICJ ruling. He instructed the courts to review whether the treaty violation in any way prejudiced the capital cases of Medellin or any of the 50 other Mexican nationals on death row in the US.

A week later, on March 7, Secretary of State Condoleezza Rice informed the United Nations that the US was withdrawing from a portion of the Vienna Convention on Consular Relations. While the US would continue to be a signatory to the

convention itself, it would no longer subject itself to the enforcement powers of the International Court of Justice on that issue.

What the action means is that in the president's view judicial review must take place in past cases in which consulates were not notified. But in future cases the ICJ will no longer have authority to order such review.

It is unclear whether the justices will view these late-breaking developments as rendering moot their involvement in the case.

Legal analysts say it is unlikely that a new review of the Medellin case will result in a reversal of his murder conviction.

Instead of focusing on the conviction, lawyers will more likely attempt to show how the involvement of Mexican consular officials might have helped convince Medellin's jury not to vote for a death sentence. "I think sentencing is really what is on the table in a lot of these cases," says Richard Dieter, executive director of the Death Penalty Information Center.

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