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Justices Consider Rights of Foreigners

Power of International Court at Issue

By Charles Lane
Washington Post Staff Writer
Tuesday, March 29, 2005; Page A04

The Supreme Court seemed divided over how best to handle a dispute over the role of international law in U.S. death penalty cases yesterday, as the justices heard oral arguments in the case of a Mexican who says Texas violated his rights under a U.S.-ratified treaty when it sentenced him to death more than a decade ago.

The court took up Medellin v. Dretke, No. 04-5928, which centers on a ruling last year by the International Court of Justice (ICJ) in The Hague. The international court ruled that the United States had violated the Vienna Convention on Consular Relations by failing to tell 51 Mexicans charged with capital murder that they had a right under the convention to meet with diplomats from their home country.

Jose E. Medellin, a Mexican, seeks a new hearing in Texas because he was not provided consular aid. (File Photo)

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One of the Mexicans, Jose Ernesto Medellin, and his supporters had urged the court to rule that the ICJ ruling is binding in U.S. courts -- an argument that, if endorsed by the Supreme Court, would have laid an important precedent in favor of the authority of international law generally.

But Texas, citing Supreme Court rulings, countered that the ICJ could not override state procedural rules under which Medellin had forfeited his right to invoke the Vienna Convention by not asserting it until 1998, rather than at his trial in 1994.

A month ago, however, President Bush intervened in this looming clash between global law and Texas law, issuing a determination that he alone, as the country's chief diplomat, has the power to decide how the country should react to the international court's rulings. Noting that the United States had agreed to accept ICJ rulings on cases involving the Vienna Convention, he instructed the state courts to give Medellin and the other Mexicans new hearings, as the ICJ had proposed, and told the Supreme Court it should bow out.

Then he withdrew the United States from international court jurisdiction under the convention, to avoid future cases.

Medellin's lawyer, Donald F. Donovan, asked the court to suspend its proceedings until he has a chance to seek a new hearing in state court, as provided for in the president's determination.

But Justice Sandra Day O'Connor said "it would be more likely we would dismiss" the case. "This is a very unusual request," she added.

And Chief Justice William H. Rehnquist said that "granting a stay could be seen as validating the position of the government without an opinion" from the court.

Rehnquist, suffering from thyroid cancer, appeared active and engaged in his second week back on the bench. He frequently asked questions and spoke clearly, albeit with the aid of a device he wears on his throat because of a tracheotomy.

But, in a reminder that his condition remains fragile, the chief justice experienced problems with his tracheotomy tube on Sunday and was taken by ambulance to the Virginia Hospital Center in Arlington, where he was treated as an outpatient, court spokesman Ed Turner said yesterday.

Texas Solicitor General R. Ted Cruz asked the court to avoid "the many interesting international law questions that swirl around the case" and rule in favor of Texas now.

Even if Medellin's rights under the treaty had been violated, Cruz argued, that could not entitle him to a new hearing. That is because a federal law enacted in 1996 -- the treaty went into effect in 1969 -- says that death row inmates can seek a fresh hearing only on new claims that their constitutional rights were violated.

But Justice David H. Souter said the court "wouldn't even have to venture into [that], if we accept the president's determination."

Cruz replied that Texas sees "significant constitutional problems with any unilateral [presidential] decision" that tells state courts what to do.

But that constitutional issue, he acknowledged, would inevitably reach the Supreme Court, after Texas courts have dealt with Medellin's effort to enforce the president's determination there.

"Why doesn't the ICJ judgment get the same recognition as any judgment by any other court?" Justice Ruth Bader Ginsburg asked Cruz.

Cruz replied that international law contemplates the Vienna Convention will be enforced through U.N. Security Council action.

U.S. Deputy Solicitor General Michael Dreeben, urging the court to let Bush's proposal for new state court hearings run its course, told the court that "if this court treats the ICJ as a free-standing source of law . . . it would rob the president of freedom of action in international affairs."

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