Legal trickery…

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Yesterday the New York Times reported:

Prompted by an international tribunal’s decision last year ordering new hearings for 51 Mexicans on death rows in the United States, the State Department said yesterday that the United States had withdrawn from the protocol that gave the tribunal jurisdiction to hear such disputes.

It’s a new—and legally questionable—manifestation of the administration’s desire to have no infringements upon its power. It all started with a memo from President Bush to Attorney General Alberto Gonzales, directing state courts to review cases of non-citizen prisoners who claim that they didn’t get access to their home-country diplomats, an act generally mandated by the International Court of Justice.

That memo seemed odd given the administration’s general distaste for international institutions. Then the pieces starting coming together. Yesterday, Secretary of State Condoleezza Rice sent a memo to UN Secretary General Kofi Annan declaring that the U.S. would wtihdraw from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes. A brief translation: “The protocol requires signatories to let the International Court of Justice (ICJ) make the final decision when their citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad.” This legal safeguard has often been used to fight the sentences of foreigners who are facing the death penalty in the U.S.

Here is where things start getting good. It turns out that the U.S. Supreme Court is scheduled to hear the case of Jose Ernesto Medellin, a Mexican currently on death row in Texas, on March 28. But thanks to the earlier memo to Gonzales directing a “review and reconsideration” in state courts, the Supreme Court case now appears moot at this point. Moreover, Medellin’s case would fall exactly under the ICJ’s purview, but given our convenient withdrawal from the protocol, the ICJ no longer has jurisdiction in these cases. So, Bush declared that Texas state courts grant a new trial to Medellin—and some 51 Mexican nationals currently in a similar situation—in the name of the principles of the ICJ, but then effectively took the enforcement power out of the Supreme Court and ICJ’s hands.

Is there any hope? Well, the Supreme Court may not have a go at this case this term, but it will probably see it again. That’s because Texas’ state judges are pissed, and questioning the legality of the President to make demands on their state courts. (For the legal ins and outs of the President’s claim vs. Texas state court’s claim, check out SCOTUSblog.) If Texas state courts refuse to acquiesce to the President’s demands, the case will probably head right back up to the Supreme Court.

Also, it has yet to be established whether the President can immediately and single-handedly withdraw from the Optional Protocol. From a preliminary scanning of the Vienna Convention on the Law of Treaties, Miami law professor Michael Froomkin finds an article that states “a party shall give no less than twelve months’ notice of its intention to denounce or withdraw from a treaty…” (Read more at his personal blog discourse.net.)

It looks like this administration is not only tired of international courts impeding on its power, but our own Supreme Court, not to mention Congress. Those pesky checks and balances…

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