From The Legal Times of November 22, 2004:
The Bush administration has not weighed in on Medellin, though before the international court it opposed Mexico’s arguments, asserting what Mexico was seeking would be an “unwarranted intrusion” on state sovereignty. One short-term possibility in the Medellin case is that the Supreme Court will ask the solicitor general for his views before deciding whether or not to grant review. Interestingly Alberto Gonzales, nominated by President George W. Bush to be the next attorney general, opined about the consular treaty issue seven years ago when he was legal counsel to then-Texas Gov. Bush.
The Mexican government in 1997 made a Vienna Convention claim on behalf of Irineo Tristan Montoya, a Mexican national on death row in Texas. But Gonzales, who advised Bush on death penalty matters, wrote, “Since the State of Texas is not a signatory to the Vienna Convention on Consular Relations, we believe it is inappropriate to ask Texas to determine whether a breach … occurred in connection with the arrest and conviction.” Two days later, Montoya was executed.
There are many voices still maintaining the White House position taken in the prominent legal case of Medellin vs Texas was one of expedience and deference to the government of Mexico. As you can see by the article quoted above, George Bush has been on both sides of this dilemma. I strongly stipulate those who make simple judgements and convenient assumptions about the President in this matter have no idea what they are talking about. It has been particularly frustrating for me to comment and post on this issue here since it is both complex and not given to brief explanation or easy answers. Compounding this have been commentators and media voices who are misinformed or uninformed about this case. Many readers and commenters are of the opinion the President chose to appease the Mexican government in Medellin when actually nothing could be further from the truth.
The far-ranging domestic and international legal implications of this case are numerous and carry repercussions for important principles upon which our government relies for its sovereignty, its system of justice and the faith fellow nations have in our honor regarding treaties we enter into with them. The continual filing of writs of habeas corpus, as in Medellin, has been the source of much acrimonious dispute, but the creation of the Guantanamo detainment center after 9/11 has made it an even more important legal issue. As Bruce Kesler notes at The Democracy Project where he derides the media for its portrayal of the SCOTUS ruling as a defeat for the Bush administration:
The issue was whether a treaty was “self-enforcing” in overriding states’ legal procedures, and whether the president can order the states to accept the override. Medellin claimed that the U.S.’s adherence to the 1969 Vienna Convention required that he should have been given immediate access to the Mexican consul.
The bigger, real issue is that the Supreme Court has set forth necessary new guidance requiring that the Congress and President – the political arms of our government – must take responsibility for precision in entering into treaties, in an age when assertions are increasingly made that “international law” either supersedes or should influence U.S. law.
There has been a great deal of commentary in legal circles about this case and ruling, none of which, by the way, mentions any motives of appeasement by the White House. The legal, legislative and judicial questions raised by the Consular Treaty of Vienna of the 1960s, under which the International Court of Justice challenge was filed in The Hague have been the subject of debate since the early 1990s. The Medellin case brought these to a head and offered the White House an opportunity to resolve this impasse. As President, George Bush is bound by his oath of office to abide by all treaties ratified in the past, whether he agrees with them or not. He is also bound to enforce the Constitution and the principles of federalism it codifies. Herein lies a large part of the conflict.
The Bush administration issued a directive to the states to comply with the Vienna Treaty and filed an amicus brief with the Supreme Court in Medellin vs Texas. Thereby performing his duty and taking the proper position as the chief executive, George Bush also knew this challenge would not pass muster with a majority of the nine justices. The ruling was returned properly and the ball now is in the court of the legislative branch which must provide statutory guidance for compliance with Vienna and other treaties. Foreign nations cannot dispute the ruling because none have been able to provide an instance where their own domestic courts have agreed to be overridden by the ICJ. George Bush played to lose so he could win. He got exactly the result he set out to achieve.
The conservative/libertarian Federalist Society has this week sponsored an online debate with the following participants: Solicitor General for the State of Texas and attorney for the respondent Ted Cruz, Saint Louis University School of Law professor David Sloss, Georgetown University Law Center professor Nick Rosenkranz, and former Legal Adviser to the U.S. State Department and current partner at Sullivan & Cromwell Edwin Williamson.
The links to the debate are here and I highly recommend them:
Part II: Presidential & Congressional Power
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Medellin was given ample opportunity to contact the consular officials. He wasted his phone call on something else.
Somebody call Edd Hendee and point him to this posting.
I would love to engage Edd in a debate about this.
I need clarification and do understand the process from the point you have written, Texpat. What I need to know is, did President Bush write a memo requesting a pardon for Medellin, and that memo brought on the uproar? I understand about the directive to abide by the Treaty. But, did he begin this with a request for a pardon?
AW
Absolutely not. That’s a crazy rumor even I haven’t heard. A president cannot pardon someone charged for a state crime anyway so, as I said in my article, whoever said that has no clue what they are talking about.
LOL, who the heck said that President Bush wrote a memo requesting a pardon? That’s hilarious.
BigJ I’ve heard that several times on talk radio, that’s why I am asking. The first incident, was an attempted pardon. Since Texpat has written this, I think he can answer that for me.
oh I see you did answer that for me. Thanks texpat.
A Memorandum to the states was issued by the White House to comply with the notification clause of the Vienna Treaty and to retroactively consider its ramifications in granting new trials for more than 50 offenders across the nation, many of them in California. Medellin’s attorneys decided to file a writ of habeas corpus in Texas based upon the White House Memorandum and the ICJ ruling. The Texas Court of Criminal Appeals denied this and it was taken directly to the SCOTUS.
Texpat I just googled to see the memo, and found it. But in my search, you would be surprised to see how many links there are to LST. Good for y’all.
Oh HUSH Rick hehe…….. I won’t tell y’all who said it and repeated it….. so there!
For anyone and everyone, there seems to be a tsunami of distortions and disinformation about this case on talk radio stations across America. I don’t know why, but even Left-leaning websites seem to have a better handle on the facts in this case than does the Right.
I would caution everyone to question everything you hear about this case and confirm the facts before you repeat them. I can’t remember the last time I encountered a situation wherein so many paople were so badly misinformed.
Geez, you high falutin’ intellectuals can’t see the forest for the trees! Or the trailer park for the trailers.
Even those of us in the park know the answer to that one. Four letters of the alphabet: b-u-s-h
I agree with Texpat and part of the problem, I think is language. The president sends a memo. Well, that is what he did, but it’s a memorandum and different from just jotting someone a note. It’s understanding the process, which Texpat is teaching me. And Texpat is right, there is a ton of misunderstanding about this case. The memorandum the president wrote says nothing about any Mexican national specifically, but just gives the number incarcerated. From what I have heard on the radio, it sounded as if this man was mentioned and it was all to save him.
Thanks, texpat, for once again trying to bring sanity - and more imporantly the real facts - to bear on this issue. As you note, it is much too complicated for mere sloganeering. People who don’t want to put the intellectual energy into understanding this matter are almost certain to mischaracterize it.
One of the great ironies here is that Bush actually did the right thing (on several levels) - and was savaged for it. (Of course, there are people who did understand the issue and attacked Bush just because.)
#16 Rick
Despite the fact he received an MBA from Harvard Business School, arguably the toughest in the nation at that time, and flew frequent missions for over two years piloting an F-102, George Bush is constantly portrayed as some kind of dimwit. He consistently outsmarts his opponents here and overseas and people are blind to it. Just amazing.
#15 AW
Now if you can google and find (in 3 minutes) that Memorandum, why is it so hard for radio talk show hosts and others to do the same thing ?
I would tell but then he’d start whining like a titty baby that I was picking on him
#18 Because sometimes the truth doesn’t get the radio listeners as riled up.
#18 Texpat, perhaps because it’s human nature to jump to conclusions. And true, firing up listeners is good for business. I think citizen frustration in general contributes.
Sure would love to believe “Bush knew this challenge would not pass muster with a majority of the justices.” showing me he really is an Einstein and not just an empty suit but all the other buffoonery he’s shown during his presidency tells me otherwise.
Texpat, I saw this decision as a stopper to the US being overrun by the caprices of the International Court. Or is this too broad an interpretation? What do you see as its impact down the road?
I assumed President Bush deliberately maneuvered to have this land in SCOTUS to get this result.
I too am sorry that so many folks have no clue about its import and rail against Mr. Bush for supposedly–in their minds–defending Medellin. Not so.
I’m just sorry that the execution can’t be scheduled until SCOTUS rules whether lethal injection is cruel and unusual punishment. To me, cruel and unusual punishment is drawing and quartering, or tying arms and legs to horses and having them run off in four directions, or crucifixion.
TexPat,(Article and 17) I’d love to be convinced that President Bush is THAT clever. On the simpler side, the fact that he was running for President as Governor seems a possible reason for his staunch behavior art the time. If we look at the reactions to 911 and the border patrol cases vis a vis Bush, there seems to be a pattern emerging. I will, of course, stand to be corrected. I’d LOVE it if all of a sudden all the missteps taken by the Bush administration were to morph into sound, principled Constitutional endevors……… Regarding Treaties though; It would be a great thing if the Constitution Trumped all else. I get particularly upset with the ‘fast track’ ratification. The Congress should do their respective Jobs and give the proper oversight. It’s annoying, in part, because they don’t read everything they vote on anyway. Why are they up there and what are they doing?
#23 Adee
When the Treaty of Vienna began to be formulated and negotiated, Dwight Eisenhower was President and George Bush was a schoolboy. Illegal immigration was a minor nuisance for federal officials and completely below anyone’s radar. Therefore, those entrusted with protecting our judicial system never gave thought to millions of illegals and the criminal element among them.
This situation is an excellent example of that spot between a rock and hard place presidents often find themselves. They frequently have no options that will not infuriate a significant portion of the country. As I wrote above, every President is bound to execute and defend all the treaties entered into by this nation, regardless of their merit. Bush took the appropriate steps in that role and yet managed to achieve the correct result in allowing the SCOTUS to defer to the legislative branch in untangling these messes.
Domestically, most treaties do not automatically execute themselves. There must be underlying federal law to to guide the application of the treaty clauses and in legislating these the Congress must take into account the obvious and not so obvious conflicts (such as states’rights). Ideally, we would not enter into a treaty agreement without the language and details suffering far more scrutiny than has occurred in the past. Scrutiny and attention to detail by both the executive and Congress was what the SCOTUS called for in this decision.
As far the future is concerned, the air is much clearer regarding our treaty obligations. On the other hand, there may be long term negotiations and ramifications not yet seen in other treaties we have signed. The burden is now on the executive and legislative branches to do a much better job. In other words, be sure to read all the fine print in the contract before you sign it.
As to George Bush, he is a very intelligent and clever guy. Just because I don’t agree with him on a number of issues does not mean he is stupid. It merely means I believe I am right and he is wrong. And I have never, ever said the man was not sharp. He is and you may disregard that at your own peril.
Texpat, Thank you for the history of events that produced the need to pass this to SCOTUS. I’m presuming you are answering my queries as well as Pimlico’s in #25 above.
#26 Adee
Always a pleasure, madame.
Texpat, As the resident ‘conspiracy buff’, I have to ask you if you really think that ‘States Right’ is ever on the mind of the Feds. As far as they are concerned, the 10th amendment is less important than the 2nd. The only time it comes up, is when a poor schlub crosses the State line to meet his lady friend that he’s paid for. Then all of a sudden, the States majically reappear.
27, Adee thanks for the mention.
#28 pimlico
I don’t disagree one bit, pimlico. The feds only acknowledge the rights of states when it hits them across the forehead like a 2×4.
And, not no, but hell no, you do not even come close to being the resident conspiracy buff or theorist on this site. There are not enough pixels available here for you to catch up to some other folks on LST.
OK, so as a hardened critic of Bush and a very harsh critic of Bush on this case, I basically understand that Bush executed his obligations to uphold the 1968 treaty knowing that by so doing, he would ultimately win. He knew this because he knew the Medellin case would never pass the now-sitting Supreme Court.
a) Didn’t George Bush pull the US out of that treaty entirely *except* for that one part where the International Court ruled in favor of Jose Medellin? So why not just pull the treaty?
b) Who cares what any foreign court says? I even call for impeachment for any judge who cites any foreign law to justify their court decision.
c) Wording in Article VI of the Constitution might be tricky but when I read,
I interpret that to say the the Constitution itself is the supreme law of the land. since the constitution protects state sovereignty, than what’s the initial conflict?
I also need to add that although “separate” from the treaty, the mere fact that two brder agents are held in prison in large part because Bush has done nothing for then and yet took very seriously his obligation to uphold a Treaty that favored a pure evil murderer is asinine to say the least.
#31 Darren10
You ask excellent questions and they are addressed in the debates I linked to at the Federalist Society. I would like to respond now, but unfortunately, I have to take care of some business. I’ll be back later today.
#32 texpat
Yes, I began reading them. They seem a good read, legal chargin and all.
I cmpletely agree that, since this did go to the S. Court, Chief Justice Roberts made an absolutely brilliant decision by throwng this back to Congress. Congress, afterall is the constitutional check on the executive and that they (Congress) does indeed to use that authority far more than they typically do.
Darren
Thanks for making the effort to be intelligently informed. I am on the run right now and have to make a quick trip into New York City, but I promise I’ll return here to your questions.
I hate it when I have to make a quick trip to New York City. That happened 84 times to me last month.
(Smiley with toungue sticking out).
Darren
I just got back from Gun Hill Road in the North Bronx taking an employee over there to pick up her insulin prescription. It is not a fun trip.
Last Saturday night, I was in the outdoor rooftop bar of a hotel on 32nd Street. When I looked up, the Empire State Building soared magnificently straight up into the sky a couple of blocks over. The drinks were cheap and the hotel was full, as is the rest of New York City, with beautiful, stunning European women. It is one of the benefits of the US dollar being so cheap. Unfortunately, I am an encumbered man and it was just eye-candy for me and my friend from Texas. The odds were about 2.5 female to male there.
texpat # 32
I read as much as i could of the Federalist Society blog debate before my boredom couldn take anymore.
So did Bush issue the order upon the Texas judiciary based on the idea that the treaty used to order a retrial of Jose Medellin is self-executive? If so, did nt David, Ed, and Nick in that forum debate succesfully argue that the treay was non-self-executive? If it’s non-self-executive than Bush did not have to do anything. In fact, all bush had to do was to simply let the Texas court ruling and sentencing against Medellin stand; just as Bush did as Governor of Texas while Jose Medellin awaited his overdue (now longly overdue) execution.