Why is the Bush administration bowing to an international court in a brutal double rape/murder case?

Those of you who are long time readers of this blog know I have defended the the President on issues many conservatives have felt like there was no defending Bush on – most noteably, the illegal immigration issue, but there have been others, too, like the UAE port deal. On another controversial issue, the Harriet Miers Supreme Court nomination, I didn’t support the President but I didn’t come down too harshly on him, either. My view of the President has generally always been that even though he sometimes may be wrongheaded about things, I believe his heart is always in the right place – as much as it can be for a politician. I don’t look at him as being a cold and calcuating individual, as I did Bill Clinton. When he advocates for something, or lobbies against it, I believe he’s got solid reasons for doing so.

That said, the President has greatly disappointed me in the case of Medellin v. Texas. The AP writes about the case here:

WASHINGTON (AP) — Neither the president nor an international court can tell Texas how to treat criminal defendants, the state’s top Supreme Court advocate told the justices in a lively argument Wednesday over the fate of a Mexican citizen on death row.

Texas Solicitor General R. Ted Cruz said Jose Ernesto Medellin received a fair trial and adequate representation even though he was not notified of his right under an international treaty to request help from Mexican diplomats when he was arrested on suspicion of raping and killing two teenagers in Houston.

“Both state and federal courts concluded there was no prejudice,” from the violation of the 1963 Vienna Convention, Cruz said.

The International Court of Justice ruled in 2004 that U.S. courts should review the convictions and sentences for Medellin and 50 other Mexican-born prisoners because of the treaty violation. President Bush has ordered that the ICJ ruling be enforced through new hearings in state courts.

The argument Wednesday, for which an hour was allotted, stretched to nearly 90 minutes as the justices threw question after question at lawyers for Medellin, the U.S. government and Texas in a case that mixes Bush administration claims of executive power with the role of international law in state court proceedings.

Several justices suggested that U.S. ratification of an agreement promising to abide by the international court’s decisions is a sufficient basis for ruling in Medellin’s favor. “The United States gave its promise. It voluntarily complied,” Justice Ruth Bader Ginsburg said.

The administration’s position is that the president’s declaration that the ruling should be enforced is reason enough for Texas to grant Medellin a new hearing. “Obviously, we feel the president’s determination here is a critical element,” U.S. Solicitor General Paul Clement said.

But Justice Antonin Scalia reacted skeptically to that idea. “You’re telling us we don’t need Congress. The president can make it domestic law” on his own, Scalia said.

Texas courts have said the international court ruling has no weight in Texas and that Bush has no power to order its enforcement.

Fox News has more:

Jennifer Ertman, 14, and her classmate, Elizabeth Pena, 16, were brutally raped and killed in 1993 after stumbling upon a gang. Jose “Joe” Ernesto Medellin, who was born in Mexico but spent much of his childhood in Texas, confessed to the killings and was sentenced to death. But 14 years later, Medellin still sits in a Texas prison cell as the White House argues that his conviction was flawed because Houston police failed to tell him of his right to seek help from the Mexican consulate.

Medellin’s right to seek legal advice from Mexican diplomats is protected by the 1963 Vienna Convention, an international treaty that President Bush must follow under the U.S. Constitution, said Susan Gzesh, director of the human rights program at the University of Chicago.

“If the U.S. is going to disobey the obligations we’ve undertaken under the Vienna Convention, then other countries could retaliate,” Gzesh said. “Bush is following the treaty.”

The Supreme Court heard an oral argument Wednesday in the case of Medellin v. Texas, where the State of Texas presented arguments to counter those from the Bush administration and Medellin’s attorney asked the court to set aside Medellin’s conviction and death sentence and grant him a new hearing.

Medellin used a court-appointed attorney throughout his case but did not become aware of his right, as a Mexican national, to seek help from the Mexican consulate until after he was sentenced to death. That right extends from the 1963 Vienna Convention, of which the United States is a signatory, and the International Court of Justice found that the rights of Medellin, and 50 other Mexican-born U.S. inmates, were violated because they weren’t informed of this right at the time their cases were being prosecuted.

The Bush administration was pulled into the case when Mexico sued the United States in 2003. The International Court of Justice ruled in Mexico’s favor in 2004, ordering the United States to review the case. Bush wrote a presidential memo in 2005 saying that the U.S. would comply and order state courts to review the cases.

Bush later withdrew the United States from the Vienna Convention that gives the international court final say in international disputes. But that withdrawal did not change U.S. obligations to follow the treaty, Gzesh said.

What I see here is an administration that feels/felt beholden to the US’ obligations under the Vienna Convention, which is very likely why they buckled after the ICJ’s ruling, and in turn ordered a review of the Medellin case. So contrary to the assertions of some bloggers I’ve seen write about this, the Bush administration isn’t ‘siding’ with a killer – it’s trying to hold true to the US’ promise under the Vienna Convention. Clearly, they didn’t/don’t like having to do this, as from the article we see that they later withdrew the US from the Vienna Convention. And for the record, we all know that Bush is no friend to brutal criminals. During his one term as governor of Texas, 152 executions took place – supposedly a modern day “record” – and spent very little time reviewing clemency petitions, which drove liberal bleeding-hearts nuts.

That said, I find it appalling that the Bush administration bowed down and didn’t fight the ICJ ruling – we’re not nor should we ever be beholden to any international court. Not only that, but if you take into consideration the fact that the administration will fight tooth and nail over many issues they are passionate about – like FISA and the Patriot Act – it makes no sense why they didn’t fight against the ICJ ruling. As you’ll soon learn, the real victims in all this deserve a President who will fight for their justice in keeping this rapist/killer behind bars and one day seeing him executed, instead of re-opening old wounds with a new trial.

The names of the two teenagers Medellin, along with several other gang members, brutally raped and murdered, are Jennifer Ertman and Elizabeth Pena. Several years ago, while searching online for websites devoted to victim’s rights, I came across the Victim’s Voices website. It’s a site that has numerous tribute pages to murder victims. The woman who created the website is a loved one of either Jennifer or Elizabeth and the first tribute created on that page was for them. I bookmarked the site on my desktop, and revisited it often, as the story of what happened to Jennifer and Elizabeth haunted me. For a while it was offline, but I see it’s back on again, and as hard as it is to read, I hope everyone reading this post will visit this link and read the horror of what Jennifer and Elizabeth had to go through the night they were raped and murdered, in order to get a full understanding of not only what they had to go through, but what their families have had to endure not just from day one of finding out what happened to their loved ones, but also having to relive it thanks to the Bush administration’s decision to bow to the ICJ, rather than fight for Elizabeth and Jennifer. I have no doubt in my mind that the President doesn’t want to see Medellin go free. I just wish they would have fought harder against the ICJ ruling and for Elizabeth and Jennifer.

My opinion, of course, is that of a layman, and not a legal expert. For legal discussion, WLS, blogging at Patterico’s, explains the case and gives his opinion here. Patterico himself weighs in briefly later in the post, and will have a post of his own posted at some point giving his full opinion, which I’m looking forward to.

Update: Oops – just noticed he’d already posted more commentary on the case here, and was ahead of the rest of us as he blogged about it back in June of 2005 when the LAT argued in defense of Medellin.

And read more thoughts via David Kopel at The Volokh Conspiracy.

Banjo says:

October 11, 2007 at 11:13 am

For George Bush, open borders trumps any other consideration.

Tony says:

October 16, 2007 at 3:24 pm

Sis, if you were arrested abroad, would you want the right to contact the U.S. consulate for help?

Great White Rat says:

October 16, 2007 at 4:19 pm

Somehow I can’t picture ST sneaking into a country illegally, joining a gang, and murdering two kids.

See, the whole concept of being an illegal is that you have no rights. You ought to be able to comprehend that.

Even if you are legal, you’re still subject to the laws of the country you enter. Try smuggling drugs into some place like Singapore, where the drug laws are really tough, and see how far your US citizenship gets you.

October 16, 2007 at 4:36 pm

From the blog post by WLS at Patterico ST linked sbove:

With respect to the consular notification issue, the Texas State Courts heard and decided three questions on the merits before the ICJ opinion, and before the Supreme Court rendered and guidance of its own: The Texas courts found:

first, that the Vienna Convention established no individual, judicially enforceable rights;

second, that Medellin defaulted his right to raise this claim under Texas procedural rules by not raising it at trial;

and third, Medellin that failed to show he suffered any harm by the failure of Texas officials to make or advise him of his right to consular notification.

Since all three issues were adjudicated on the merits, and there were not contrary to clearly established federal law AS DETERMINED BY THE SUPREME COURT (as opposed to the IJC), they cannot be raised in a later federal habeas proceeding.

Third, the Court said that a defendant cannot seek to enforce a new rule of law in a habeas proceeding unless that new rule of law is made explicitly retroactive BY THE SUPREME COURT.

In other words, (a) it might come as a surprise to Tony, but the US Constitution is the supreme law of the land, not the opinions of some U.N. court, (b) Medellin, although an illegal alien, at no time claimed to be a Mexican national, so the Vienna convention was not violated, and (c) he was guilty as hell anyway, and every lawyer in Mexico wouldn’t have changed that fact.