Does Foreign Law Govern US Courts?

The facts for this comment, but not its legal conclusions, come from an article on Fox News on October 7.

The death penalty for Jose Ernesto Medellin has been confirmed at all levels in the Texas courts, and in federal courts, for leading a gang that engaged in a particularly reprehensible torture, rape and murder of two young girls in Texas, years ago. But Medellin is an illegal alien, so he has mounted one more challenge to his death sentence.

Whether the ACLU is engaged in this particular case, there is no doubt that it approves of any effort to prevent this man from being executed. That is the universal approach of the ACLU's Death Penalty Project.

There are 51 Mexicans in jail for major charges, including Medellin, who claim that their convictions in the US are illegal because US authorities did not inform the local Mexican consulate, to provide legal services to the charged individuals. They made this claim in the International Court of Justice at the Hague. That Court ruled that the convictions of these individuals violated their rights under the 1963 Vienna Convention.

There is a serious problem with this approach, since the US has deliberately not approved the treaty that would give the International Court of Justice any jurisdiction over American courts and American law. There is a second problem with this claim, because any defendant can waive any rights he has, by not raising them. Not until years after his original conviction and appeal did Medellin raise any objection based on the Mexican consulate being notified.

There is a third problem with this claim. Like all defendants without funds, Medellin was provided counsel without charge. That is a right that most defendants in most cases in most nations, never receive. And lastly, there is zero doubt that Medellin led the gang which committed these brutal, double murders. He confessed, and his confession is a matter of record. Other members of his gang in this murder have already been executed, or have avoided execution by pointing out that they were "too young to be executed."

For whatever reason, President Bush is urging Texas courts to follow the finding of the Court at the Hague, even though that Court has no jurisdiction here. This idea, that the US Supreme Court should make decisions based on foreign law, has long been supported by the ACLU, and accepted, sadly, by some members of the Supreme Court.

The state of Texas and its courts have consistently taken the position that Medellin was given all rights available to citizens of Texas at every stage of his trial and appeals. They also take the position that no foreign court has any authority to direct what US courts should do, in trying anyone who has been charged with harming or killing an American citizen in America. And lastly, they take the position that the President of the US has no legal authority to instruct any court in the nation to take any particular action in any particular case.

It is the view of the American Civil Rights Union that the US Supreme Court should obey and follow the US Constitution, and not any foreign source of authority — court, legislature, whatever — in deciding what the Constitution means. If the Supreme Court does that, this final appeal by Medellin should be rejected, and he should be executed as promptly as possible.

The one part of the story which is missed in the article is the lack of jurisdiction of the International Court over any part of the US. This is critical because no President has ever submitted the treaty for that subject to the Senate for confirmation, nor has it ever been considered by the Senate.

Go here for the Fox News story.