John Quigley, President Bush's Directive on Foreigners Under Arrest: a Critique of Medellín v. Texas

• Publication year: 2008

PRESIDENT BUSH'S DIRECTIVE ON FOREIGNERS UNDER ARREST: A CRITIQUE OF MEDELLIN V. TEXAS

John Quigley^*

INTRODUCTION

Medellín v. Texas, decided in 2008, is the U.S. Supreme Court's third case in three years involving claims to relief by foreign nationals on death row on the grounds that they were not advised by police of their right of access to a home country consul.¹In 2006, in Sanchez-Llamas v. Oregon, the Court ruled that an incriminating statement made by a foreign national who had not been so advised need not be suppressed.²In a companion case, Bustillo v. Virginia, the Court determined that state courts may invoke their rules on procedural default to keep a foreign national from raising a claim of a consular access violation if the claim is not made by the stage required under state law.³

As in the two 2006 cases, the Court in Medellín v. Texas declined to provide relief to a foreign national, but the case involved a new element. The primary issue before the Court was whether the President of the United States could order state courts, in contravention of state procedural default rules, to provide reconsideration and review of the named nationals' claims.⁴With regard to Medellín, the United States had already been sued by Mexico in the International Court of Justice (ICJ) in the case of Avena and Other Mexican Nationals.⁵In that case, a number of Mexican nationals arrested in the United States, convicted of murder, and sentenced to death had not been informed by local police at the time of their arrests of their right of access to a consulate of

Mexico.⁶Such a right is guaranteed under a widely ratified treaty, the Vienna Convention on Consular Relations (VCCR).⁷The ICJ ruled that this violation, which was acknowledged by the United States, called for a review in a judicial forum of the cases of 51 named Mexican nationals to determine whether the violations required a reversal of the convictions or sentences.⁸Medellín, one of the 51, was on death row in Texas.⁹

Medellín had earlier sought review of his conviction on the grounds of not being advised of consular access and of the ICJ decision in Avena.¹⁰After failing in the lower courts,¹¹he gained review via a writ of certiorari in the U.S. Supreme Court.¹²While that case was pending in the Supreme Court, President George W. Bush made a determination, expressed in a memorandum to the U.S. Attorney General:

[T]he United States will discharge its international obligations under the decision of the International Court of Justice . . . by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.¹³

Under Article 94 of the U.N. Charter (a treaty ratified by the United States), a state that is a party to a case before the ICJ must comply with any decision the ICJ renders in the case.¹⁴

The U.S. Attorney General did not act on the President's memorandum, but Medellín filed a new habeas corpus petition in a Texas court seeking review of his conviction and sentence based on the memorandum and the ICJ's decision in Avena.¹⁵The Supreme Court dismissed Medellín's petition on the grounds that the writ of certiorari had been improvidently granted, reasoning that the state court proceedings might provide the review and reconsideration for which he filed and that his claim for federal relief might otherwise be barred.¹⁶

The Texas Court of Criminal Appeals, Texas's highest court for criminal matters, decided that the President's memorandum was not binding on Texas.¹⁷

It noted that Medellín had failed to raise his claim of a consular access violation either at trial or on direct appeal, but had done so only at the post- conviction proceedings stage.¹⁸The court had earlier ruled under Texas law that Medellín could not raise the matter at the post-conviction proceedings stage.¹⁹The court said that if President Bush's directive were valid, it would override Texas law on the timing of raising claims.²⁰

The Texas Court of Criminal Appeals assumed, arguendo, that the memorandum constituted an executive order, even though it contained no language directed at the states.²¹The court said that the President has the power to resolve disputes with other countries.²²It viewed the situation underlying the memorandum as a dispute between the United States and Mexico.²³Citing U.S. Supreme Court cases on the power of the President to resolve disputes, it said that the president could, by an executive agreement with another country, take action that would be binding on the states.²⁴The opinion stated that the United States had concluded no executive agreement with Mexico.²⁵Instead, President Bush had acted unilaterally to decide that state courts should review the convictions of the 51 Mexican nationals.²⁶The court asserted:

[T]he President's independent power to settle a dispute with a foreign nation, recognized throughout the nation's history, depends on the existence of an executive agreement. Given the extraordinary conduct of the President, unsupported by a history of congressional acquiescence, we find that the President's chosen method for resolving this country's dispute with Mexico is "incompatible with the . . . implied will of Congress[.]"²⁷

The opinion clarified that while Congress has acquiesced to the President resolving disputes by executive agreement, there was no practice of Congressional acquiescence to the President resolving disputes by memorandum to the U.S. Attorney General.²⁸

Following this ruling by the Texas Court of Criminal Appeals, Medellín sought the issuance from the U.S. Supreme Court of a writ of certiorari, which the Court granted.²⁹Texas asked the Court to affirm, including in its brief on the merits an additional rationale not present in the opinion of the Texas Court of Criminal Appeals.³⁰Texas asserted that the arguably relevant treaty provisions, prominently U.N. Charter Article 94, were not self-executing.³¹

Medellín, in his brief on the merits, argued to the contrary that it was within the power of the President to seek implementation of the Avena decision since the United States had agreed, by U.N. Charter Article 94, to comply with such decisions.³²

Over three dissenting votes, the U.S. Supreme Court affirmed the Texas Court of Criminal Appeals.³³Unlike the Texas court, the Supreme Court did not insist on a distinction between a unilateral presidential act and an executive agreement, but rather construed the President's memorandum as a document that could potentially require the contemplated action by the state courts.³⁴But the Supreme Court took up the line of analysis presented by the State of Texas in its brief on the merits, namely whether the provisions of the relevant treaties were self-executing, and resolved to answer this central question. In affirming the Texas Court of Criminal Appeals, the Court concluded that the treaty provisions were not self-executing.³⁵Thus, the Texas courts need not apply them, and President Bush had no authority to ask them to do so.³⁶

This Commentary critiques the Supreme Court's approach on both these aspects of its decision. First, it argues that self-execution was not the appropriate analysis. Second, it argues that even if it were the correct analysis, the Supreme Court misapplied the self-execution doctrine by misreading the treaty provisions in question. These two aspects of the decision merit analysis, in particular because neither is fully explained by the justices who dissented.

I. CONSULAR ACCESS AS A RIGHT OF A FOREIGN NATIONAL

Medellín's underlying claim, on which he relied in his first foray into the U.S. Supreme Court, was that he was entitled to review of his conviction and sentence in light of the violation of his right of consular access.³⁷This right is guaranteed by VCCR Article 36, which requires the authorities who arrest foreign nationals to allow them contact with their consul and to inform them of their right of contact.³⁸Consular access has a long history in relations between nation-states. Consuls have a right to visit incarcerated co-nationals, advise them on local procedure, help them find a defense attorney, keep tabs on the treatment being afforded by local authorities, and attend trials as observers.³⁹

Medellín received none of this; when he was arrested in Texas on a rape and murder charge, Texas police did not inform him that he had a right to communicate with a consul of Mexico.⁴⁰Police thereafter elicited an incriminating statement, and Medellín was convicted and sentenced to death.⁴¹

Medellín's lawyers did not raise the issue at trial or on direct appeal.⁴²When Medellín's lawyers raised a consular access claim at the post-conviction stage, the Texas courts, as indicated, said that the claim was barred.⁴³

While Medellín's case was making its way through the courts, Mexico sued the United States in the International Court of Justice, alleging violation of the consular access rights of Medellín and other Mexican nationals who had been convicted of murder and sentenced to death in various states.⁴⁴A right of consular access inures to an arrested foreign national regardless of the potential penalty, but the home states of foreign nationals arrested in the United States have been particularly concerned when capital punishment may result.⁴⁵With regard to nearly all of the arrested Mexican nationals, the ICJ found that no information about consular access had been provided to them at the time of arrest.⁴⁶The ICJ read the VCCR to require a judicial remedy to determine whether the violations affected the proceedings in such a way that either the conviction or sentence should be reversed.⁴⁷It ruled that the United States was required to provide judicial review of these convictions and sentences for that purpose.⁴⁸

Under the U.N. Charter, a state that is a party to ICJ proceedings, as was the United States, must comply with the decision.⁴⁹Even though the United States had argued in...