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

OUR OPINION: COMPLIANCE WITH HAGUE RULING PROTECTS AMERICANS ABROAD

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.