April 16, 2004: Austin American-Statesman

Miranda offers simple fix to consular rights problem

Exhibit A in how emotion can cloud reason is the political yammering over an International Court of Justice ruling that the United States had violated a treaty guaranteeing foreign criminal defendants the right to consult with their governments.

This rather simple legal matter is cloaked in too many layers of complexity.

The fact that the court’s decision involved Mexican nationals convicted of capital crimes and sentenced to death heightens the emotional quotient. When the International Court ruled recently that the United States had violated the rights of more than 50 Mexicans on death row throughout the country, the response was predictable.

Robert Black, a spokesman for Texas Gov. Rick Perry, said, “While Governor Perry respects the world court to have its opinion, the fact remains that the court has no jurisdiction or standing in Texas.”

That’s just what Texans would expect to hear, but it’s not quite to the point.

Before we talk about what the ruling is, let’s talk about what it isn’t. It isn’t a blanket order to stop executions.

It is a judgment of the court that the United States isn’t adhering to a treaty commitment signed in 1963 that guarantees foreigners the right to see a representative of their country if they are taken into custody.

The governor’s spokesman is quite correct; there is no way for the court to enforce its order.

But the court raises an issue about basic fairness. U.S. citizens taken into custody abroad have never been shy about asserting their right to see an embassy or consular representative. The same should apply to foreigners arrested here.

As participants at a University of Texas symposium on the topic held this week discussed, there are practical as well as moral reasons for assuring consular access. And there is a very simple solution to ensuring that suspects are notified clearly that they have the right.

The practical reason should be obvious. If the United States ignores the rights of foreigners, it invites foreign governments to ignore the rights of U.S. citizens abroad. Besides, ignoring treaty obligations is not the way to build international good will, understanding and cooperation.

The court has asked for a review, and it is possible that review will affect the outcome of the convictions. Such a review should not be construed as an assault on national sovereignty, but as another way of ensuring that the system works properly and fairly before it is allowed to take a life.

Averting future challenges would be quite simple: As part of the Miranda warning, advise suspects that they have a right to consult a consular representative if they are not citizens of the United States. A bill that would have done just that died in the last session of the Legislature. One of the objections was that officers could be accused of profiling.

Bunk. All suspects are advised now that if they can’t afford a lawyer, one will be appointed to them. If there are complaints that the sentence profiles all suspects as being poor, they are as few as they are ridiculous.

Complying with the treaty isn’t giving anyone special rights, but a step toward protecting the very basic human right of people in trouble being able to seek help from their government.

April 13, 2004: News & Observer (NC)

Foreigners on death row

The first thing an American arrested in a foreign country would likely do is loudly demand the right to contact the nearest United States consulate or embassy. Now imagine the reaction in this country if 51 U.S. citizens were arrested abroad without being allowed contact with American officials. And what if every one of those 51 who had been denied such contact was facing execution?

The International Court of Justice recently ordered U.S. courts to review the death sentences of 51 Mexican citizens because they were denied the right to speak with Mexican diplomatic officials when they were arrested. The case should never have reached the United Nations’ highest court, but now that it has, the just and humane choice is for federal court officials to immediately move to halt those 51 pending executions while they accede to the international court’s demands for an “effective review.”

The Bush administration and other conservative groups have long been suspicious of international tribunals. They conjure up frightful images of one-world governments and international courts usurping jurisdiction in this country. Texas Gov. Rick Perry put it bluntly, “The International Court of Justice does not have jurisdiction in Texas.”

No, but this country’s federal court system has all the jurisdiction it needs. Death penalty appeals invariably move through the federal system after state court appeals have been exhausted. It would be a simple matter for a federal judge to put the executions on hold and order the “effective review” the international court has demanded.

It would also be the morally right thing to do. The United States admits that we have breached the 1963 Vienna Convention requiring police to tell foreigners under arrest that they have a right to contact their country’s diplomats. We have even apologized for past breaches and promised to follow the common-sense rule of international diplomacy in the future.

This country, as it should, forcefully demands that Americans arrested in foreign countries be allowed access to our diplomats. We should do no less for foreigners arrested here, if for no other reason than to protect Americans who find themselves in trouble overseas.

April 12, 2004: Dallas Morning News

Keeping Your Word - Texas can’t afford to ignore federal treaties

You’re charged with murder in a country whose judiciary is notorious for its inefficiency and corruption. You don’t speak the language, you’re short of money, and your closest acquaintance is the receptionist at the local youth hostel. You need help.

Almost at wits’ end, you think of invoking the Vienna Convention on Consular Relations, which empowers you to request legal assistance from U.S. diplomats. Your jailers refuse. “Your country doesn’t respect our right to ask our diplomats for help,” one of them explains as he slides you your daily ration of gruel. “Why should we respect your right?”

Sound implausible? It’s not. The United States consistently puts its citizens at such risk by failing to inform foreign criminal suspects of their treaty right to seek legal assistance from their countries’ consulates. The United States also puts its international reputation at risk by failing to fulfill the legal and moral obligation that it undertook when the U.S. Senate freely ratified and President Richard Nixon freely signed the convention into law in 1969.

The International Court of Justice exposed the United States’ failure last week. Responding to a suit by Mexico, the Netherlands-based court ruled 14 to 1 that the United States should review the cases of 51 Mexicans on death row – including 15 in Texas – because it had denied them their right of consular assistance. The U.S. judge sided with the majority; the dissenter was Venezuelan.

The United States should obey by giving the 51 Mexicans new hearings to determine whether their cases should be retried. Considering that it wants to build international support for its war against terrorism, the United

States hardly can afford to be seen as dismissing another treaty. It should obey, despite Gov. Rick Perry’s incorrect assertion that the court has no standing in Texas. As the Constitution states, treaties are “the supreme law of the land, and the judges in every state shall be bound thereby.”

Anyone who thinks the United States should ignore the court should consider the possible consequences to Americans overseas. It’s hard to argue that your right should be respected when you deny that right to others.

APRIL 6, 2004: Houston Chronicle

Review cases of foreign nationals on death row

Foreign nationals accused of serious crimes in this country should be given access to their diplomatic services, in accordance with the 1963 Vienna Convention. The United States expects no less for its citizens arrested abroad.

But the World Court - properly known as the International Court of Justice, the United Nations’ highest court – cannot expect to impose its will on the American judicial system, which is sovereign and headed by 1 court - the 9-member U.S. Supreme Court.

The World Court has no authority to order the United States to review the cases of 51 Mexican nationals on death row in 8 states, including Texas, who did not receive access to Mexican diplomats for one reason or another. Nevertheless, the cases should be reviewed.

Texas and other states with Mexican nationals on death row maintain that the defendants were given fair trials, but they are seeking advice from the Justice Department on what to do.

It goes without saying that issues such as language comprehension and constitutional rights to competent representation and a fair trial are routine matters of concern for all defendants on trial, citizens and noncitizens alike. They are the fixtures of the appeals of all who receive the death penalty.

The Death Penalty Information Center says 121 foreign citizens reside on death row; 55 are Mexican nationals. Federal and state officials contend the nation’s criminal justice system tries to abide by the Vienna Convention, but that some foreignnationals fall through the cracks while others lie about their citizenship.

Mexican nationals on death row have been a sore point in the relationship between Mexican President Vicente Fox and President Bush. Fox says he believes the United States will comply with the World Court’s order. We should review the cases on our own initiative.

There is little evidence that foreign nationals routinely fail to get a fair trial, even if they have not received access to their consular corps. However, the nation has a duty to ensure that its system is just and unassailable in the court of world opinion. That means abiding by the Vienna Convention 100 % of the time.

APRIL 5, 2004: International Herald Tribune

Foreigners on death row

The International Court of Justice has ruled that 51 Mexican nationals on death row in the United States are owed a review of their cases because they were not provided access to representatives of their government when first arrested, in violation of international law. The Bush administration needs to heed the court’s order, not only as a moral and legal imperative, but as a matter of protecting American citizens overseas.

Imagine an American being executed in Mexico after being denied a visit by an American consular official, and you get a sense of why this case arouses such anger in Mexico.

The 1963 Vienna Convention on Consular Relations establishes the right of diplomats to be granted immediate access to their citizens arrested in a foreign country. It is vital for the United States - more so than for any other nation - that this be strictly observed. American tourists and businessmen are often targeted by less-than-scrupulous law enforcement officers in foreign countries, and the intervention of consular officials is often the only way to ensure due process.

For the Bush administration to compel states to review these cases - a treaty ratified by Congress trumps state laws under the Constitution - would also provide a much-needed affirmation that Washington still believes in international law.

Citizens in many democracies around the world are appalled that the United States still has a death penalty, an emotion that originally tainted their view of George W. Bush, who presided over many executions as Texas governor. But the ruling out of The Hague is not meant to challenge the death penalty. In fact, the court does not ask for any sentences to be annulled; it asks only for a complete review to remedy the human rights violation.

In the future, American law enforcement agencies must do a better job of notifying the appropriate consular officials when a foreign national is arrested. For now, Washington should stop the executions of the 51 Mexicans. The alternative, to ignore the international court’s decision, would poison relations with Mexico, send a signal that the United States doesn’t take its international obligations seriously and - worst of all - imperil Americans overseas.

APRIL 4, 2004: Miami Herald


Last week’s ruling by the International Court of Justice in favor of 52 Mexican citizens on Death Row in American prisons should set off alarm bells all over Washington. At a time when the United States needs as many allies as it can muster to wage the war on terror, the ruling challenges our government to live up to its own commitment to international law.

A perceived failure to comply would do irreparable harm to the U.S. claim to moral leadership in a world in which the forces of good and evil are in contention.

The case itself is straightforward. As a signatory to the 1963 Vienna Convention, the United States is obliged to inform all foreign nationals under arrest, without delay, that they have a right to assistance from their consulate or embassy.

Obviously, this is a provision that also protects American citizens when they find themselves summarily tossed into the slammer in any of the 165 nations covered by the treaty.

Judicial review

In the case of the 52 Mexicans, this basic measure of protection was apparently denied, leading the 15-member court at The Hague to instruct the United States that it “should provide by means of its own choosing meaningful review of the conviction and sentence” in all cases.

It must be noted that the ruling is most emphatically not a veto of the application of the death penalty, nor does it require retrials. It is equally important to note, however, that the United States didn’t deny that it breached the convention. U.S. lawyers noted that defendants have a right to ask for clemency, a remedy that often results in a pardon or a reduced sentence.

The court, however, said that this wasn’t enough and instructed U.S. authorities to undertake a genuine reconsideration of the cases. The court left the mechanism of judicial review up to the government, but the ruling itself is binding. Although the court has no means of enforcement, Mexican officials expressed confidence that the government of its northern neighbor would comply.

Compliance is essential, not only to signal U.S. support for the rule of law, but for the sake of justice as well. Informing a foreign national of the right to assistance from his or her consular service is no more of a technicality than the Miranda warning that informs citizens of their right to remain silent. It is an indispensable element of criminal law that helps to avoid miscarriages of justice.

Since all of the 52 cases involve state rather than federal courts, the role of the states is crucial to a just disposition. Regretfully, the initial reaction of a few state officials so far is that they have no obligation to comply with international-court rulings.

Opportunity calls

What is needed, therefore, is a comprehensive effort of education and coordination between state and national law enforcement and judicial bodies, beginning with the Justice Department. It must inform the states that the ruling at The Hague demands acknowledgment, not dismissal, and follow up with other actions to ensure compliance. The ruling should be seen not primarily as a challenge, but as an opportunity to demonstrate a U.S. belief in resolving international disputes through the rule of law.

APRIL 3, 2004: Fort Worth Star-Telegram

Standards of justice

The United States’ disregard for international laws designed to protect the rights of foreign crime suspects does not become a nation founded on the principles of equal opportunity, equal protection under the law and the guaranteed right to a fair trial.

Whenever this nation disregards those noble ideas, even — and perhaps especially — in the cases of noncitizens, it is diminished in the eyes of the world.

This week, the International Court of Justice in The Hague, Netherlands, ordered the United States to review the sentences of 51 Mexican citizens on death row in 9 states, including Texas.

Under the Vienna Convention on Consular Relations of 1963, people arrested in foreign countries have a right to meet with representatives of their own government. The International Court said the United States had violated rights of Mexican citizens arrested here by denying them access to their consular officials after being arrested.

The court did not tell the United States how to conduct the review of the cases, and it did not order — as Mexico had demanded — that all 51 convictions be annulled.

Although this ruling is seen as a victory for Mexico and a clear denunciation of U.S. criminal justice procedures regarding foreign defendants, American officials should not scorn this decision.

It is imperative that U.S. officials develop a plan of adequately addressing the concerns raised by the court.

The departments of State and Justice should work together in producing a methodology leading to review of each case and communicate that process to the states.

Gov. Rick Perry’s statement that the International Court has no jurisdiction in Texas smacks of a kind of condescension that ought to be avoided at this time.

The United States always has asserted that it has the right to talk to American prisoners in foreign jails when it wants. We can’t have it both ways, and we should never insist that there be a double standard for justice — one for Americans and another for everybody else.

APRIL 3, 2004: Los Angeles Times

No Justice in Rights Denied

A traveler’s worst nightmare would be to be far from home in a strange land and suddenly arrested by draconian authorities. What American, if detained overseas, wouldn’t welcome an immediate jail visit by a U.S. consul? So, if fair is fair, aren’t foreigners entitled to the same treatment if arrested here?

But, in fact, there are questions about treatment of dozens of foreigners jailed and facing this land’s ultimate penalty, the U.N.’s International Court of Justice in The Hague has found. The court ruled Wednesday that 51 Mexicans on death row in California and other U.S. states improperly were deprived of consular aid when arrested, and it ordered American authorities to “review and reconsider” their cases. The court in no way suggested any sentence commutations. Nor did it speak of the innocence or guilt of the 51.

The judicial decision, however, is worth heeding, even though the panel has no power to enforce its rulings. Why? The U.S. signed the 1963 Vienna Convention on Consular Relations and has said since 1969 that it would abide by it.

This directly affects Americans abroad, as the U.S. government relies on the Vienna accord to ensure their consular protections on arrest and has invoked the jurisdiction of the international court to resolve disputes between nations.

The State Department for years has labored to ensure local law enforcement agencies comply with the Vienna accord. Its requirement that consular officials be notified if a foreigner gets arrested is simple. Yet, sadly, U.S. officials admit that foreign detainees are not always advised of their right to call their consuls.

The obstinacy of state officials isn’t helpful. Texas Gov. Rick Perry, for example, dismissed consular notice and balked at any review of his state’s foreigners on death row, arguing, “the International Court of Justice does not have jurisdiction in

Texas.” His bluster is as backward as that of a Third World despot trying to jail an American for a traffic ticket. Except this issue is life and death for more than 120 foreigners from 29 nations on death rows across the U.S.

The services that consuls offer to foreigners, ultimately, are limited and wouldn’t abet a killer convicted after a fair, open trial in a U.S. court. The issue of this nation meeting its international treaty obligations, however, isn’t up to the states but to the federal government. And the Bush administration should see this isn’t an instance for its usual resistance to international courts’ asserting jurisdiction. With millions of Americans traveling globally and needing consular protection, and with the U.S. needing international cooperation on so many matters, it just makes sense for State Department lawyers to work with officials in the various states to review the 51 cases. State officials should be happy to tell the world that police in this country follow proper procedures or to see courts in the U.S. decide the significance of any problems discovered on review.

APRIL 2, 2004: Baltimore Sun

What goes around

By ordering the United States to re-examine the death penalty cases of 51 Mexicans who were denied the right to contact a Mexican consular official, the International Court of Justice on Wednesday challenged this country to bring its law enforcement practices into line with its democratic values. How embarrassing that a clean-your-own-house rebuke comes at a time of already strained American credibility in world affairs. And how chilling a reminder this is, yet again, of the fragility of that principle we call justice in capital cases.

The global implications of America’s repeated violation of the 1963 Vienna Convention are obvious: Failing to notify an arrested foreign national of the right to contact his or her consul, while demanding respect for the rights of Americans abroad, is a dangerous hypocrisy. Why should the world honor an American’s right to call on consular help when accused of a crime, if the same right is not extended on U.S. soil to visitors, immigrants and, yes, even illegal aliens?

The world court rejected Mexico’s request to overturn the sentences of its citizens on American death rows; instead, it said each one’s case must be examined by the courts to determine whether access to diplomatic assistance - such as referrals to defense lawyers who speak their language, or visas for witnesses - might have affected the outcome.

The Bush administration has not said how or whether it will implement the order, after arguing in vain that clemency proceedings could provide the necessary due process and that the U.S. legal system afforded the Mexican nationals a fair trial. Though the United States has ignored the treaty, related court orders in the past have led to some reforms: The State Department, for example, helps guide and train law enforcement agencies on notifying foreign citizens of their rights.

Clearly, more must be done to ensure that police agencies and criminal court judges recognize that their actions in such cases affect America’s standing in the world’s eyes - and that justice in death-eligible cases involving foreigners includes honoring rights protected by the treaty.