Bush Co. Argues that Int'l Law Trumps US, SCOTUS says "NO"

One of the more bizarre arguments to come out of the supposedly conservative, supposedly Republican Bush administration was the line that and international court had the power to, through BushCo, command a US state court to reopen a death penalty case.

SCOTUS begs to differ.

More below the fold . . .

Now, this is an interesting case to me, because I personally believe that the plaintiff in the case, a Mexican national, should have won this one.

Here's what happened:

Medellin, 33, has lived in the United States since he was 3; he speaks and writes English but is still a Mexican national. He was part of a gang that attacked Jennifer Ertman, 14, and Elizabeth Pe¿a, 16, as the girls walked home from a friend's house. The girls were raped and murdered, one of them strangled with her own shoestring.

Medellin signed a waiver of his Miranda right to remain silent and confessed within hours of his arrest. But he was not told of his right to talk to the consulate of his country, guaranteed to those arrested outside their home countries under the Vienna Convention. Medellin did not raise that right during his trial but did in one of his death penalty appeals.

BushCo essentially told Texas to re-open the case due to the Vienna conventions, and Texas said no. The case went to the SCOTUS, who agreed with Texas.

Of course, this flies in the face of international law, as well as common human decency, and so in this case BushCo seemed to be in the right. Sort of. It's one of those very tricky decisions, where the Justices were arguing that Bush cannot command the state courts to do something. Separation of powers, I'm assuming. Still, it seems that on the larger merits, the case shoudl be reopened, but not cause Bush says so. And the Justices could certainly have opined that way.

But the conservative SCOTUS, which Bush so loudly trumpets to his 29%, voted the way conservatives do.

Justices voting to say "fuck you" to international law? The usual suspects:

[Chief Justice Roberts], Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Justice John Paul Stevens agreed with the outcome, but for different reasons than Roberts gave.

So, there you have it. Another SCOTUS decision against BushCo. Wrong reasons, this time.

•  Anyway

  Time to get rid of all of them.

  by AndrewMC on Tue Mar 25, 2008 at 05:13:09 PM PDT

  •  Bush didn't want to win this one

    they only pursued it because they were too disorganized and doofus-y at the beginning and ended up with a participating order entered against them in the case filed by Mexico.

    Bush thought there was no way that would happen, it did, then he had to decide whether or not to outright violate the Hague ruling or to make some half-assed attempt to pretend they were complying.

    He picked the second option and now they've issued the statements that they won't participate in any future International court cases involving consular access.  

    But in essence, the court did not rule against him - they did exactly what he wanted.

    What will be interesting will be seeing how the Executive limitations under  state law theories get reconciled vis a vis the state cases filed by several AGs based on the illegal wiretaps.

    by Mary2002 on Tue Mar 25, 2008 at 05:32:05 PM PDT

    •  Excellent

      Excellent comment. This puts the case in a much more sensible light in terms of past BushCo actions. Thanks for the comment.

      by AndrewMC on Tue Mar 25, 2008 at 05:37:28 PM PDT

    •  Your analysis is excellent

      I've certainly not read the decision, the best information I have is Nina Totenberg's NPR report and this diary, but what I thought was interesting is that this decision reaffirms judicial scrutiny of the Executive Branch. In an odd way, by failing to aggressively defend the "unitary executive", the Administration has allowed a decision to be handed down which erodes their central thesis.

      by DaNang65 on Tue Mar 25, 2008 at 06:34:19 PM PDT

      •  Absolutely

        I'll have to go look for the NPR piece. But, yes. This seems to go against something that the Bushies strive for--unitary power.

        by AndrewMC on Tue Mar 25, 2008 at 06:40:13 PM PDT

      •  Bush's theory has gotten pwned in the courts

        on a regular basis.  It's the Nixon II Presidency for conlaw purposes, since it's been a constant overreaching and equally constant series of spankings.

        by burrow owl on Tue Mar 25, 2008 at 06:48:58 PM PDT

    •  This doesn't touch on state law & FISA.

      The preliminary question at bar is whether there's even a conflict between state and federal law.  The majority said there isn't, and game's over.  If federal law did enact the treaty, either implicitly through the supremacy of the executive (as Bush claims) or because the treaty is self-executing (as the dissent claims), then it's simple: the treaty controls through the instrumentality of federal law.

      by burrow owl on Tue Mar 25, 2008 at 06:48:00 PM PDT

•  Now I'm confused.

  Am I supposed to :) or :( ?

  by bugscuffle on Tue Mar 25, 2008 at 05:15:14 PM PDT

•  Law means little to the current members of USSC

  The Court's decisions are based on factual outcomes that assure that the public gets screwed and big business and the government wins.

  This case does pose an interesting conflict between the executive and judicial branches. Usually Bush and Roberts are hand in glove. What was the administration's reason for pushing recognition of international law?

  by alasmoses on Tue Mar 25, 2008 at 05:18:54 PM PDT

  •  my guess?

    Ties with Mexico. Any other nationals would have been screwed, I'd imagine.

    by AndrewMC on Tue Mar 25, 2008 at 05:20:06 PM PDT

  •  To Lose?

    I don't want to come off the wacky conspiracy theorist.  That said, I'm a litigator by trade for institutional client and can advise that sometimes we run things up the flag pole BECAUSE WE DON'T MIND LOSING and in fact think losing would be a useful precedent for other more important cases in the future.

    Not saying that happened here and I haven't read the case yet.  However, it is wise to keep in mind that often the legal principle is far more important than the issue at hand (and no, I don't mean to trivialize an important death penalty case) and that those broader interests inform why and how a case is approached.

    by Childofexpats on Tue Mar 25, 2008 at 05:23:04 PM PDT

    •  Interesting

      I hadn't thought of that, but it makes some sense. Get the COURT to rule that international law doesn't apply.

      by AndrewMC on Tue Mar 25, 2008 at 05:28:46 PM PDT

    •  a Win/Win Argument

      I suspect that this may have been viewed as a win/win argument for the President.  The position advanced would have the effect of increasing/recognizing extraordinary discretionary powers in the office of the President and the Bush administration has tried to concentrate as much power in that office as possible.  If they won their argument about President's ability to send the matter back to retrial it is good for that argument - and it may keep Mexico happy in this case and potentially other countries like Canada happy in others.

      If the administration lost the case - then it was a triumph for the important (to the Bush administration) policy of ensuring international law does not trump domestic law.

      Win.Win.  

      by Childofexpats on Tue Mar 25, 2008 at 05:29:47 PM PDT

      •  A better reading, I think, is that it's unitary

        executive at play.  TX's argument is that the treaty can't enact itself (it's not self-executing, as they say).  President Bush's counter, which anyone can see a mile away: "Because I said so."  That's the entirety of the administration's position, as far as I can tell.

        by burrow owl on Tue Mar 25, 2008 at 06:42:54 PM PDT

    •  I don't think that Bush

      has ever felt the need for clemancy - so yeah a bit weird.  Though the fact that he f*&ked it up - is more in line with how he does business.

      by shiobhan on Tue Mar 25, 2008 at 05:29:53 PM PDT

      •  One of the very few shards of his legacy

        is that he'll tell himself that he improved relations w/ Mexico.  

        by burrow owl on Tue Mar 25, 2008 at 06:49:57 PM PDT

  •  How about some legal analysis to go w/ that?

    If they're so clearly wrong, it should be pretty easy for you to cite some caselaw to support your position.

    by burrow owl on Tue Mar 25, 2008 at 06:35:52 PM PDT

•  i agree with decision, there's a bigger question

  If georgieboy wants the U.S.(we the people) to listen to an int'l court, then why didn't he sign the treaty that would allow int'l courts to oversee the courtmartial of U.S. military personnel?  I don't get it... some issues he wants us to be part of the rest of the world, and others he doesn't.  It's not a grey question-- either we are or we aren't?  gee, wasn't that also a line of his.. either they are with us or against us....
  but again, if int'l courts are going to be allowed to overrule state courts, then why don't they have the power to oversee our military tribunals on war crimes?  These people are such hypocrites!!1

  by cheapsweater on Tue Mar 25, 2008 at 05:34:59 PM PDT

•  The U.S. ratified the Vienna Convention

  on Consular Relations (finalized in 1963) long before W came to office -- in 1972.  The problem is that there was never any mechanism to enforce it.  When treaties are ratified, the Senate asserts that the treaty is not "self-enforcing," meaning it requires another law in order to be enforced in the courts.  But there is no law (and cannot be, in one vision of the Constitution) that gives the Feds power to tell the States how to handle foreigners who are arrested.
  This case came up because the accused was sentenced to death, while Mexico doesn't have the death penalty, so their government wanted to protect him, and used the treaty obligation to put pressure on Washington to pressure Texas.  Former-Governor Bush was in the awkward position of having to tell his successor not to behave as he would have.
  The SCOTUS ruling is only going to make other governments more suspicious of our motives...

  by stevenwag on Tue Mar 25, 2008 at 06:21:06 PM PDT

•  Thanks for cutting to the chase . . .

  some other posts seemed to celebrate the fact that the Court dissed Bush.  The problem is, this is one of the rare cases where Bush was right on the merits.  That said, he may well have been wrong on procedure, and his "do it because I said so the Constitution be damned" attitude reflects an imperial presidency.  It's possible the right approach could be enacted into federal law that the state courts would have to apply - if Congress weren't spineless.

  by Ho Ho on Tue Mar 25, 2008 at 07:05:05 PM PDT