Making sense of the U.S. President's intervention in Medellin.

• Author: Cerone, John
• Position: The Medellin v. Texas Symposium

1. INTRODUCTION

   U.S. President George W. Bush has intervened (1) on behalf of a (non-white-collar) criminal defendant, (2) in a death penalty case, (3) in Texas, (4) invoking principles of comity, (5) with reference to an international legal obligation on the United States, (6) as determined by an international court, (7) in a judgment that penetrates deeply into the domestic criminal justice system, (8) of Texas.

   What's not wrong with this picture?

   Has the President been converted to a true believer of the merits of a robust international legal order with organs of international governance and the power to issue orders binding upon countries, even when the country in question is the United States itself? Does the White House suddenly think that international law is an integral part of the internal legal order of the United States? Has the Bush Administration woken up to the inequities of criminal justice systems in the United States? Or has the President simply become an ardent opponent of capital punishment?

   As extraordinary as this may seem, a closer examination of the U.S. President's position in the Medellin case reveals that it is not as out of step with the Bush Administration's prior attitude toward international law and international institutions as may at first appear.

   Indeed, it becomes clear that there are a range of reasons why this President would take the position he does. First, the Avena judgment gave rise to an undeniable legal obligation on the United States, and there are strong U.S. interests in seeing that obligation fulfilled, not least of which is the consular protection of U.S. nationals abroad. From this vantage, the President's intervention is entirely consistent with the traditional pragmatic approach of the U.S. government toward international courts, which, Bush's occasional outburst notwithstanding, (1) has been largely carried on by his administration.

   However, the position taken in the Medellin case may also serve narrower interests. When viewed in light of the U.S. Executive's invocation of international law in a counter-terrorism context, a pattern seems to emerge. In particular, throughout the "War on Terror," the White House has invoked international law to expand its authority, both externally and internally, while rejecting the limitations imposed by international law. This pattern is exemplified in the case of Hamdan v. Rumsfeld. (2) From this vantage, the President's intervention in Medellin smacks of a power-grab.

2. THE U.S. PRESIDENT'S POSITION IN MEDELLIN

   In March 2004, in the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), the International Court of Justice (ICJ) found the United States to be in violation of its obligations under the Vienna Convention on Consular Relations (VCCR) owing to, inter alia, its failure to inform certain named Mexican nationals, who had been detained in the United States in the context of criminal proceedings, that they had a right to have the Mexican consular authorities notified of their situation. (3) At the time Mexico brought this case to the ICJ, all of the named individuals had been tried, convicted, and sentenced to death by courts in the United States. With reference to a number of those individuals, the ICJ further held that appropriate reparation for the breach "consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of" their convictions and sentences. (4) The ICJ also noted that "it is the judicial process that is suited to this task." (5)

   The United States is clearly bound by this judgment on the international plane. As a member state of the United Nations, the United States has an international legal obligation to "com ply with the decision of the International Court of Justice in any case to which it is a party." (6)

   One of the detainees specifically named in that case was Jose Ernesto Medellin. At the time the ICJ delivered that judgment, Medellin was on death row in Texas and in the process of seeking post-conviction habeas relief in federal court. In December 2004, the U.S. Supreme Court granted his petition for certiorari. (7) While the case was pending before the Court, President Bush on February 28, 2005 issued a "Memorandum for the Attorney General," which provided in pertinent part:

   I have determined, pursuant to the authority vested in me as President by the Constitution and laws of the United States, that the United States will discharge its international obligations under the decision of the international Court of Justice in [Avena], 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. This Memo was also attached to the amicus brief filed by the United States in the Medellin case that same day. Exactly one week later, by a letter deposited with the UN Secretary General, the United States denounced the VCCR Optional Protocol (8) that had given the ICJ jurisdiction over consular notification cases. (9)

   On the basis of the President's "determination," Medellin's attorneys then re-filed for habeas relief at the state level while seeking a stay of the proceedings in the Supreme Court. In light of these developments, the Supreme Court dismissed the writ of certiorari as "improvidently granted" and noted that the Texas courts "may provide Medellin with the review and reconsideration of his Vienna Convention claim that the ICJ required, and that Medellin now seeks in this proceeding." (10)

   The following year, the Supreme Court rendered judgment in two other cases in which foreign nationals were seeking post-conviction relief on the basis that they were not informed of their right to consular notification. However, the individuals in these cases were not among those whose situations were considered by the International Court of Justice, and were thus not encompassed by any of the ICJ judgments against the United States. (11) Nonetheless, the petitioners invoked the Avena judgment as authority in their cases, asserting that the ICJ's interpretation of the VCCR was authoritative. In the June 2006 judgment in Sanchez-Llamas v. Oregon and Bustillo v. Johnson, the Supreme Court held that the ICJ's interpretation was due "respectful consideration," (12) but flatly rejected any notion that it was binding upon the Court. As for the 2005 Presidential Memorandum, the Court noted that the United States had "not taken the view that the ICJ's interpretation of [the relevant article of the VCCR] is binding on our courts," but had merely "agreed to 'discharge its international obligations' in having state courts give effect to the decision in Avena." (13) It also noted the U.S. denunciation of the Optional Protocol as further evidence of the lack of Avena's authority. (14)

   A few months later, the Medellin case (i.e., the re-petition for habeas relief based on the Presidential Memorandum) had worked its way back up to the Texas Court of Criminal Appeals. That court denied Medellin's petition for post-conviction relief, finding that neither Avena nor the Presidential Memorandum were "binding law." (15)

   And now the Medellin case is once again before the U.S. Supreme Court. In its Brief of the United States as Amicus Curiae in Support of the Petitioner, the Executive makes its position clear.

   According to the U.S. Brief, the state courts must give effect to Avena because the President stated that they would do so pursuant to his determination that the United States would com ply with its international obligations in this instance. It argues that "in light of the President's well-established constitutional and statutory powers in the realm of foreign affairs and his historically accepted lead role in responding to ICJ decisions," the President is authorized to make such a determination and to compel compliance by the state courts as the mode of implementation of these obligations. (16)

3. THE INSTRUMENTALIST APPROACH TO INTERNATIONAL JUDICIAL AUTHORITY

   The attitude of the U.S. government toward international courts can be best described as pragmatic. At a May 2006 colloquium on the subject of U.S. attitudes toward international courts, U.S. State Department Legal Adviser John Bellinger stated:

   In our view, such courts and tribunals should not be seen as an end in themselves but rather as potential tools to advance shared international interests in developing and promoting the rule of law, ensuring justice and accountability, and solving legal disputes. Consistent with this approach, we evaluate the contributions that proposed international courts and tribunals may make on a case-by-case basis, just as we consider the advantages and disadvantages of particular matters through international judicial mechanisms rather than diplomatic or other means. (17) The U.S. approach is essentially instrumentalist, employing international judicial authority when it suits U.S. interests. (18)

   In an international criminal context, for example, this has played out in erratic levels of support for international criminal courts. (19) While the United States has at times been an extremely strong supporter of some international criminal courts, it has not been supportive of others. And even among those international criminal courts that the United States generally favors, such as the Yugoslav and Rwanda Tribunals, U.S. support has fallen off sharply when those institutions have acted in a way that was perceived in Washington as contrary to U.S. foreign policy objectives. The jurisprudence of these institutions has also been invoked selectively and instrumentally. (20)

   When it comes to the ICJ, U.S. support for this venerable institution has ebbed and flowed according to the U.S. interests implicated in the particular cases before it. (21) A range of interests, both direct and indirect, enter into this calculation. (22) There are certainly a...