The Bush administration has announced that it will attempt to defuse a long-simmering international dispute over the death penalty by instructing Texas state courts to give 51 Mexicans facing the death penalty new hearings on their claims that they were denied meetings with diplomats from their nation, in violation of international law.
In a Feb. 28 brief filed with the Supreme Court, the administration said the United States would bow to a 2004 ruling by the International Court of Justice in The Hague, also known as the World Court, which found that Texas officials violated the Vienna Convention on Consular Relations by not providing the Mexicans with consular access. That treaty, ratified by the United States in 1969, provides that "consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation."
Mexican national Jose E. Medellin sued when denied access to diplomats.
(Texas Dept. of Criminal Justice--AP File)
The situation of Mexicans facing capital punishment in Texas has been a sore point in relations between Washington and Mexico City. Mexico argues that its citizens would fare better in Texas courts if they got aid from home-country diplomats. The consular-access issue has also flared between the United States and its European allies, who are generally critical of the death penalty, especially in Bush's home state. Germany pressed and won a World Court case in 2001 over a German national who faced a capital trial in Arizona without consular access.
More broadly, the United States has been under fire in international forums for the Bush administration's perceived refusal to adhere to international legal norms in such places as the prison for accused terrorists at Guantanamo Bay, Cuba.
"The government of Mexico is very satisfied. . . . Without doubt this is a step that Mexico has looked for," said Arturo Dager, spokesman for the Foreign Ministry in Mexico City. He said that although it does not necessarily mean the sentences will be changed, Bush's decision to review them is "more in line with international law."
Ana Maria Salazar, a political analyst in Mexico City, said that "if President Bush doesn't commute [the sentences], there could be a big backlash" for Mexican President Vicente Fox. She said that by raising the death penalty issue ahead of this month's meeting with Fox, Bush has taken what had been a dormant issue in Mexico and raised expectations of U.S. action.
In its Supreme Court brief in the Mexicans' case, Medellin v. Dretke, No. 04-5928, the Bush administration declared that the president has concluded that, on this issue, it is in the United States' interest to provide foreigners with consular access, lest such access be denied to U.S. citizens abroad.
"In this case, the President, the nation's representative in foreign affairs, has determined that the United States will comply with the ICJ decision," says the brief, drafted by Acting Solicitor General Paul D. Clement with input from State Department lawyers. "Compliance serves to protect the interests of United States citizens abroad, promotes the effective conduct of foreign relations, and underscores the United States' commitment in the international community to the rule of law."
Bush's nod to international opinion involves a sweeping assertion of executive authority within the United States, in that, without any legislative action by Congress, he is issuing instructions to the courts of a sovereign state as to how to treat defendants. Texas courts, the president says, should review the Mexicans' cases to see if the lack of consular access affected their trials or sentencing.
His approach would also greatly reduce the role of the Supreme Court, which has been asked by attorneys for one of the Mexicans, Jose E. Medellin, to rule that the decision of the World Court is all the authority individual foreigners need to get a new hearing in U.S. state courts.
"It is for the President, not the courts, to determine whether the United States should comply with the decision, and, if so, how," the administration's brief says.
It is unclear whether the Supreme Court, which is protective of its role in interpreting federal treaty obligations, will be willing to go along with Bush's suggestion.
Correspondent Kevin Sullivan contributed to this report.