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The already-intense debate over the role of international law in Supreme Court decision making shifts into high gear this week when the justices consider the case of Jose Medellin, a Mexican citizen on death row in Texas. The justices are scheduled to discuss Medellin v. Dretke at their private conference Wednesday to decide whether to hear the case later in the term. The Court’s action on Medellin, along with dozens of other cases on the Nov. 24 agenda, may be announced when the Court convenes again in open session Nov. 29. The issue before the Court in Medellin is the enforceability of a dramatic March 31 ruling by the International Court of Justice in The Hague, which ordered U.S. courts to re-examine the death sentences of Medellin and 50 other Mexican nationals on American death rows. Review was necessary, the international court ruled, because at the time of their arrest, the 51 were not given their right under an international treaty to seek help from their consulates in defending themselves. That international court decision prompted the Oklahoma Court of Criminal Appeals on May 13 to halt the execution of Osbaldo Torres, one of the Mexicans. Gov. Brad Henry commuted Torres’ sentence later the same day, citing the international court’s ruling. But acting separately six days later, the 5th U.S. Circuit Court of Appeals ruled that Medellin was procedurally barred from raising the treaty claim, in spite of the international court’s decision. Even before the high court acts, Medellin’s appeal of the 5th Circuit ruling has drawn extraordinary interest, including amicus curiae briefs to the Court from 13 Central and South American nations, the European Union and several former diplomats. Among them is L. Bruce Laingen, charge d’affaire of the U.S. Embassy in Iran during the 1979-81 hostage crisis, when the U.S. government invoked the consular rights treaty. Failure by U.S. courts to respect the consular treaty, the diplomats assert, will lead other nations to reciprocate, which “will ultimately and inevitably endanger the welfare of United States citizens abroad.” A brief by the Mexican government insists that the international court’s decision “constitutes a binding adjudication of Mr. Medellin’s rights that the United States must fully implement,” adding, “The Court of Appeals has violated its own obligation to do so.” Complex procedural issues could still derail Medellin, but if the Court grants review, it will represent a new front in the debate over the growing influence of international law in high court jurisprudence. Justice Stephen Breyer in a recent talk before the Paris Bar Association meeting in Washington, D.C., said his job has “changed tremendously” in 10 years because an increasing portion of the Court’s docket involves international law. But whereas justices have cited foreign law in recent years to give a global context to their decisions, Medellin poses a direct conflict between a ruling by a U.S.-endorsed international court and a lower federal appeals court, with Oklahoma’s contrary state court decision thrown in for good measure. All the rulings interpret a treaty, the Vienna Convention on Consular Relations, that was actively embraced and advocated by the United States in the early 1960s. At a University of Tulsa College of Law conference on the Supreme Court and international law last month, Yale Law School Dean Harold Koh highlighted Medellin as a potentially landmark examination of the relationship between international and domestic courts. “Foreigners arrested in the United States have a constitutional right to a lawyer,” said Koh, a leading advocate for a “transnational” approach to law by the Supreme Court. “Does an individual whose treaty rights have been violated have a domestic judicial remedy? Must federal courts comply with binding treaty obligations? My prediction is the Supreme Court will grant certiorari.” “This case will tell us a lot about where the Court is going on international law,” says Kevin Sullivan of King & Spalding’s D.C. office, who authored a brief on Medellin’s behalf for Amnesty International and other legal and human rights groups. “It is a perfect example of how a U.S. court ruling can have significant foreign relations implications,” adds Sarah Cleveland, a former Harry Blackmun law clerk who teaches international law at the University of Texas School of Law. She also spoke at the Tulsa conference. Under the Vienna Convention, ratified by the U.S. Senate in 1969, law enforcement officials are required “without delay” to tell foreign nationals of their right to contact their consulates after being arrested, and also to tell consulates that one of their nationals has been detained. The treaty also gives the United Nations-affiliated International Court of Justice — often referred to as the World Court — “compulsory jurisdiction” over disputes involving rights under the treaty. Medellin, 18 at the time, was arrested in Houston in 1993 for his role in a brutal gang-related rape and murder of two girls. After his arrest, Medellin told police and other officials that he was a Mexican citizen, but the Mexican consulate was not informed of his arrest. The following year Medellin and two other gang members, represented by court-appointed counsel, were found guilty of capital murder. The Texas Court of Criminal Appeals affirmed his conviction and sentence in 1997. Mexican consular authorities first learned about Medellin later that year when he wrote them from death row. Mexico immediately began helping Medellin with successive appeals. “Since well before the trial of Mr. Medellin, Mexico has provided critical resources to aid in the defense of its nationals facing the death penalty,” wrote Minneapolis human rights lawyer Sandra Babcock in the Mexican government’s brief. Mexico went to the international court to protest the violation of Medellin’s consular rights, along with those of 50 other Mexicans imprisoned in the United States. Meanwhile, both state and federal courts rejected Medellin’s appeals as procedurally defaulted because he had not raised the Vienna Convention claim at the trial stage. The 5th Circuit took note of the international court’s ruling, but it said that under the 1998 Supreme Court precedent Breard v. Greene, ordinary procedural default rules take precedence over Vienna Convention claims. “Only the Supreme Court may overrule a Supreme Court decision,” the 5th Circuit decision stated. “We are bound to follow the precedent until taught otherwise by the Supreme Court.” Breard v. Greene was an unsigned opinion issued just hours before the execution of a Paraguayan national in Virginia. In the ruling, the Supreme Court said procedural default rules trump the consular treaty — even though under the Constitution, ratified treaties are the “supreme law of the land.” Texas professor Cleveland describes the Breard ruling as “the watershed, the high water mark of Supreme Court hostility toward international law.” She adds that “given the growing interest of the Court in international law issues,” the time may be right for the Court to revisit Breard — especially in light of the international court’s forceful ruling on the consular issue in March. The Mexican brief underlines that point, noting that Medellin, unlike Breard, comes to the Supreme Court after a final and binding judgment of the international court. Tulsa law school professor Janet Levit, an organizer of the recent conference on the high court and international law, thinks the Oklahoma Court of Criminal Appeals ruling that enforced the international court ruling in the Torres case adds an intriguing element to the debate. “State courts are transnational actors, too,” she says. But University of San Diego School of Law professor Michael Ramsey thinks the Supreme Court may well be content to leave the issue untouched. “This looks like the Breard case all over again, and I see no reason to think the Court is in a mood to overturn it,” says Ramsey, a former clerk to Antonin Scalia. Texas also urges the high court to deny review in Medellin. In a brief by Assistant Texas Attorney General Gena Bunn, Texas argues that the 5th Circuit in essence complied with the international court ruling by giving adequate consideration of the consular treaty issue before ruling against Medellin. “Medellin has already been afforded the full merits review mandated by the [international court],” the brief asserts. But Ramsey acknowledges that the Court is more interested in international issues now, and may feel compelled to grant review in Medellin for the benefit of the international community. “The Court’s certiorari process may not be totally understood outside this country, so denying review might be seen as giving short shrift to the issue.” Even Scalia, who is critical of the use of foreign law sources in Supreme Court jurisprudence, might give Medellin careful consideration. In a speech before the American Society of International Law in March, Scalia said foreign law “can never be relevant” to the interpretation of the U.S. Constitution. But in other contexts, he said, “it is impossible to say never.” One example he mentioned where foreign sources might be appropriate to consider: treaty interpretation by foreign courts. The Bush administration has not weighed in on Medellin, though before the international court it opposed Mexico’s arguments, asserting what Mexico was seeking would be an “unwarranted intrusion” on state sovereignty. One short-term possibility in the Medellin case is that the Supreme Court will ask the solicitor general for his views before deciding whether or not to grant review. Interestingly Alberto Gonzales, nominated by President George W. Bush to be the next attorney general, opined about the consular treaty issue seven years ago when he was legal counsel to then-Texas Gov. Bush. The Mexican government in 1997 made a Vienna Convention claim on behalf of Irineo Tristan Montoya, a Mexican national on death row in Texas. But Gonzales, who advised Bush on death penalty matters, wrote, “Since the State of Texas is not a signatory to the Vienna Convention on Consular Relations, we believe it is inappropriate to ask Texas to determine whether a breach … occurred in connection with the arrest and conviction.” Two days later, Montoya was executed. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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