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http://writ.news.findlaw.com/commentary/20031120_leavitt.html

How The U.S. Supreme Court Recently Refused to Enforce U.S. Law, and Insulted the International Court of Justice By Noah Leavitt

Thursday, Nov. 20, 2003

This past week, the U.S. Supreme Court denied review in the important case of Torres v. Mullin. It should have accepted the case, or at least refrained from declining review until after the International Court of Justice (ICJ) had ruled on the petitioner's claims.

In declining review, the Court turned a blind eye to the United States' repeated violations of its obligations under the Vienna Convention on Consular Relations (VCCR). And in so doing, it refused to enforce U.S. law.

Article VI of the U.S. Constitution provides that treaties, such as the VCCR, are the law of the United States. That means that the VCCR is as much a part of our law as the Supreme Court's decision's, or Congress's statutes. Yet the Court chose to ignore repeated violations of this law.

Equally disturbingly, in choosing to rule when it did, the Court also opened up the possibility that a man may be executed in Oklahoma before the ICJ can even consider his arguments. Moreover, its ruling inconsistent with the growing national trend to eliminate many of the problems in the capital punishment system, as demonstrated by the Illinois legislature's passages yesterday of a sweeping death penalty reform bill."

This denial of review is not only an injustice to the individual, but an insult to an international tribunal.

The Facts and Claims in Torres

Osbaldo Torres is a Mexican national who is on death row in Oklahoma, after being convicted of a double murder. Torres argues that his conviction is the result of the inadequacy of his counsel -- and that his counsel would have been far superior had he been allowed to contact the Mexican consulate for help.

Torres says that, after his arrest in the U.S., police and other law enforcement officials failed to tell him that he had the right to meet with Mexican consular representatives -- as they were obliged to do under the Vienna Convention on Consular Relations (VCCR), an international convention that the U.S. has ratified. Moreover, a lawyer for the Mexican government says that Mexico was not given the opportunity to assist Torres -- as the VCCR also required.

For these reasons, the ICJ (also known as the "World Court") requested a stay of Torres' execution. It has scheduled oral arguments in the relevant case for December, and is expected to resolve the case sometime in 2004. (That case, Avena, involves not only the fate of Torres himself, but also those of fifty-three other Mexican nationals on death row in ten states, who allegedly also were not told of their right to seek assistance from Mexican consular representatives.)

But the ICJ may never have a chance to rule -- for Oklahoma could execute Torres before then. For this reason, Justice Stephen Breyer contended, in a dissent to the denial of review, that the Supreme Court should have waited to rule on Torres' petition for review after the ICJ's ruling.

Breyer was right. Now that his brethren have ignored his wise counsel, they have opened the way for a possible miscarriage of justice -- in which Oklahoma may execute Torres before the ICJ decides (or, perhaps, even hears argument in) his case.

Repeated Breaches by the U.S. of Vienna Convention Obligations

In 2001, in the LaGrand Case, the ICJ held that, under the VCCR, two German nationals sentenced to death in the United States had the right to be informed of their right of access to their consulate. That right, however, was not honored.

The ICJ found the United States in breach of its treaty obligations. It ordered the State Department to devise a remedy consistent with U.S. law -- ruling that the U.S.'s polite apology was hardly a sufficient remedy. The brothers were ultimately executed by Arizona.

The Germans' case -- and those of the fifty-four Mexicans, including Torres -- are hardly isolated. During the last decade, Amnesty International reports, at least 20 foreign nationals have been executed in America -- and nearly all of them claimed they were never told of their right to contact their consulates. Currently, more than 120 foreign nationals from 29 countries are on death row across America. It appears that many of them were never advised of their Vienna Convention rights.

Why Are Foreign Nationals' Treaty Rights Being Repeatedly Violated?

Why is this happening? Justice John Paul Stevens, who also dissented from the denial of review in Torres's case, offered one possible answer. He pointed out that it is reasonable to presume that most foreigners, as well as most local prosecutors, are simply unaware of this important right.

Justice Stevens may well be right. If he is, the remedy is simple: Give new trials to those foreign nationals who were not allowed to consult with consular representatives, and thus could not afford private counsel, and allow the consulate, at the new trial, to provide a new attorney if it so chooses. Meanwhile, to ensure this never happens again, make sure police nationwide are instructed in their VCCR obligations just as they are instructed to read suspects their Miranda rights. Indeed, VCCR obligations could easily be incorporated into the reading of Miranda rights: If you are a foreign national, you have the right to consult with your consulate.

But what if Justice Stevens is wrong -- and the disregard of treaty obligations is actually not innocent, but willful? It's difficult to believe that, given the 2001 LaGrand Case, the Department of Justice has not at least considered, in the past two years, whether to instruct local U.S. Attorneys' Offices -- and to advise D.A's offices throughout the fifty states -- to inform foreign nationals of their treaty rights under the VCCR.

After all, the failure to honor these rights is not only hurting the defendants, but also putting in jeopardy their convictions, and executions. From DOJ's perspective, this should be, at a minimum, a huge waste of resources, in the event these defendants must be retried and resentenced.

So why doesn't DOJ intervene? As time goes on, and more and more cases occur in which the VCCR has been ignored, a frightening conclusion seems more and more likely to be true. It is this: DOJ would rather see defendants railroaded onto death row because of poor legal representation, than risk that if they contact their consulates, they will procure better lawyers, and potentially avoid death.

In short, DOJ appears to want a faulty death sentence, rather than none at all. That is taking support for the death penalty about as far as it will go -- and only intensifying the current, deep divide on death penalty issues that has already caused a rift between the U.S. and its European allies.

The Cost of Ignoring International Treaty Obligations

And it's not just the European/U.S. death penalty divide that deepens. The risks to Americans abroad intensify too. After all, VCCR rights work both ways.

When Americans abroad are arrested, the VCCR guarantees them access to the relevant U.S. consulates. But why should other countries honor the treaty, when the U.S. doesn't?

The U.S. seems to believe that its conduct won't come back to haunt it -- whether it's arming Osama bin Laden, supporting Saddam, or violating the rights of anyone who isn't an American citizen (and of some who are). But that has proven untrue, and it may prove untrue here, as well. When an American citizen abroad is held incommunicado, without the ability to talk to the U.S. consulate, it may turn out that the U.S.'s own Department of Justice deserves some of the blame.

The Supreme Court should have stepped in here, as Justices Breyer and Stevens urged. This is a legal issue of national importance that affects a large number of death row prisoners and has sweeping ramifications for Americans around the world. It is thus the very type of issue that it is the Court's function to review: The stakes are high, the precedent will be significant, and the injustice, if the law is not honored, will be great.

Moreover, the Court can only duck this issue for so long -- giving it even less reason to duck it in Torres's case. At least two other petitions for review, in the cases of Ortiz v. U.S. and Sinisterra v. U.S., raise the very same VCCR claims that Torres did. Since the Court knew it had to decide this issue eventually, how could it refrain from deciding it now, when the result may be a wrongful execution?

When the Court does decide a VCCR case, it will be taking on an issue of great importance: To what extent will U.S. courts hold the U.S. to treaty obligations -- which, after all, are a part of U.S. law? A decision for the defendant will be a decision for the rule of law. A contrary decision will be a decision licensing a degree of lawlessness that we can not afford to accept.

When the Court resolves this issue, it can be sure that the world will be watching.

Noah Leavitt, an attorney, is the Advocacy Director for the Jewish Council on Urban Affairs in Chicago (www.jcua.org). Leavitt assisted the German legal team in the LaGrand Case. The views expressed here are his alone. Leavitt can be contacted at nsleavitt@hotmail.com.