The Bush administration has announced that it will attempt to defuse a long-simmering international dispute over the death penalty by instructing Texas state courts to give 51 Mexicans facing the death penalty new hearings on their claims that they were denied meetings with diplomats from their nation, in violation of international law.
In a Feb. 28 brief filed with the Supreme Court, the administration said the United States would bow to a 2004 ruling by the International Court of Justice in The Hague, also known as the World Court, which found that Texas officials violated the Vienna Convention on Consular Relations by not providing the Mexicans with consular access. That treaty, ratified by the United States in 1969, provides that "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." [...] Ana Maria Salazar, a political analyst in Mexico City, said that "if President Bush doesn't commute [the sentences], there could be a big backlash" for Mexican President Vicente Fox. She said that by raising the death penalty issue ahead of this month's meeting with Fox, Bush has taken what had been a dormant issue in Mexico and raised expectations of U.S. action. [...] Bush's nod to international opinion involves a sweeping assertion of executive authority within the United States, in that, without any legislative action by Congress, he is issuing instructions to the courts of a sovereign state as to how to treat defendants. Texas courts, the president says, should review the Mexicans' cases to see if the lack of consular access affected their trials or sentencing.
His approach would also greatly reduce the role of the Supreme Court, which has been asked by attorneys for one of the Mexicans, Jose E. Medellin, to rule that the decision of the World Court is all the authority individual foreigners need to get a new hearing in U.S. state courts. "It is for the President, not the courts, to determine whether the United States should comply with the decision, and, if so, how," the administration's brief says.
It will be interesting to see how this falls out. The path lays open for the president to get a fairly comprehensive rebuff not only from the Supreme Court, which is likely to take a dim view of executive poaching on both the legislative and judicial powers, but from Texas itself; historically, states have been very prickly about presidents issuing directives at them, and Texas more so than most.
As per usual, there also seems to be a profound misunderstanding abroad about the structure of the US judicial systems. Ms Salazar states that there will be consequences to Fox if Bush doesn't commute the sentences of those who were sentenced in violation of US treaty obligations, but Bush has absolutely no authority to commute those sentences. The only one who could do so would be the governor of Texas.
I do wonder why the administration chose this time to raise the issue. Raising Mexico's expectations on this issue would seem to be thoroughly unwise; even if Texas decides to abide by the administration directive, any hearings are quite likely to assume that consular representation would have made no difference whatsoever. (Given Texas' courts, that's also quite likely to be true.) Of course, that's all going to be somewhere down the line; it won't have any direct bearing on the upcoming meeting between Bush and Fox.
Still, very odd.Posted by iain at March 08, 2005 12:10 PM