Re: Texas court tells Bush to butt out.
Thomas wrote:Nice to see you back, Joe, and thanks for the pointer to the case.
Glad to be back.
Thomas wrote:On a superficial glance, this looks like earlier cases in South-Western states where German citizens were left uninformed about their consular rights. They caused quite some outrage in Germany about those contract-breaking American bullies -- rightly so in my opinion. While there are many things wrong with the Bush administration, Bush's intervention in cases like this may not be one of them.
The Bush administration opposed granting defendants their rights under the Vienna Convention until two adverse rulings by the International Court of Justice (ICJ), including the
LaGrand case, convinced it to change its policy. So Bush was against it before he was for it.
Thomas wrote:Joe, could you explain to me why the US government's view is even controversial? It seems very straightforward to this interested layman.
Under the US consitution, the president "shall have power, by and with the advice and consent of the Senate, to make treaties". The Vienna Convention is one such treaty.
Your constitution also provides that
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; [b]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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.[/b]" ([i]emphasis added[/i])
Ergo, 'the judges in Texas shall be bound by the Vienna Convention, any Thing in the Constitution or Laws of Texas to the Contrary notwithstanding'. Bush, having the power to make treaties, has a good reason to pressure Texas state courts to enforce this particular treaty he made. Looks like a slam dunk for Bush to me. Why isn't it?
I was afraid someone might ask that.
The Texas court's reasoning goes something like this: the Vienna Convention is a treaty, so it has the same status as a federal law. But it is not self-executing -- i.e. it doesn't contain any provision that sets forth how the Convention is supposed to be implemented. That is left for the congress, and congress hasn't taken that step. So, in effect, the Vienna Convention merits only "respectful consideration." In particular, the court held that there's no law or precedent that says that the Convention supersedes state procedural law -- in this case, the law that says that a defendant who does not assert certain rights at an initial stage in his criminal proceedings can lose those rights. The court said that the right to consular assistance under the Convention is one of those rights, and that Medellin lost that right when he failed to assert it.
Although Bush issued a memorandum which adhered to the ICJ interpretation of the Vienna Convention, the Texas court ruled that the memorandum did not amount to an executive order, and so it was just an interpretation of the law that merited no special consideration. Or, in other words, the court responded to Bush with an "oh yeah? sez you!"
That, at least, is my understanding of it, based on an admittedly cursory reading of the opinion. It should also be noted that, as a result of the judicial spankings administered by the ICJ,
the US has withdrawn from that part of the Vienna Convention that permits appeals to the ICJ (registration req'd).
