J.J. Goldberg October 7, 2011

You’ve probably heard by now of Shane Bauer and Joshua Fattal, the American students imprisoned and abused in Iran for two years, virtually incommunicado, on flimsy espionage charges until they were finally “bailed out” (read: ransomed) by Oman and released last month.

You may also know about Alan Gross, the ailing American computer specialist arrested in Cuba in 2009 and sentenced to 15 years on sedition charges for helping to set up Internet access for the Cuban Jewish community. He too has had very limited access to the outside world — only four consular visits in two years — despite Cuba’s treaty obligations under the 1963 Vienna Convention on Consular Relations, which requires that imprisoned foreign nationals be allowed access to and assistance from their country’s diplomats.

Unfortunately, as NYU political scientist Louis Klarevas pointed out in a post this week on ForeignPolicy.com, it’s been hard for the United States to insist on its right to defend its citizens abroad, because we are one of the major violators of that very treaty. Our law enforcement authorities routinely ignore their obligation to inform prisoners of their consular rights, despite repeated protests — not just from Iran and Cuba but from Britain, Canada, the European Union, Germany, Mexico, and Paraguay. In fact, we lead the world in executing foreign nationals without allowing them access to their consular representatives. According Klarevas, a counter-terrorism expert,

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out of at least 160 capital cases in which a foreign national was sentenced to death in the United States, only seven — less than 5 percent — were in full compliance with the VCCR’s requirements.

What’s more, Klarevas reports, citing the Washington-based Death Penalty Information Center,

since 1976, when capital punishment was reinstated by the Supreme Court, 27 foreign nationals from 15 countries have been put to death in the United States without full and proper compliance under the VCCR — the most recent incident being Florida’s execution of Cuban national Manuel Valle on Sept. 28. With Valle’s death, there are now at least 135 foreigners representing 34 nationalities on death row, most of whom have raised a VCCR violation claim. The plurality of these inmates are from Mexico.

Why is consular representation so important?

The right is one of basic decency, as getting arrested abroad can be quite intimidating. It’s scary enough when you don’t speak the language. It’s downright overwhelming when you don’t know the intricacies of the criminal justice system.

So why does the American justice system so consistently disregard its obligations? Herein lies a tale.

The Vienna Convention on Consular Representation was signed in 1963 and ratified unanimously by the U.S. Senate in 1969. That makes it the law of the land, overriding any other state or federal law, according to the explicit language of the Constitution, which says in Article VI:

…all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Another treaty by which the United States is bound, incidentally, is the United Nations Charter, which it ratified in 1945. Article 92 of the U.N. Charter requires signatories to abide by the rulings of the International Court of Justice in The Hague. (The ICJ, sometimes known as the World Court, is different from the more recent International Criminal Court which the United States does not recognize.)

In 2003, Mexico sued the United States before the World Court over 51 Mexican citizens being held in various U.S. states without having been granted consular rights. In 2005 the court ruled against the United States and ordered the 51 cases reviewed. An appeal was now filed before the U.S. Supreme Court by one of the 51 Mexicans, Jose Ernesto Medellin, who was on death row in Texas after being convicted of a 1993 rape-murder. The Supreme Court agreed to hear the case.

Before the Supreme Court could act, however, President Bush issued a memorandum ordering states to review the convictions and sentences of the 51, asserting his authority as president to implement foreign policy and protect American interests. He also announced that the United States was withdrawing from the Vienna Convention’s enforcement protocol. Medellin now filed a new appeal, citing Bush’s memorandum.

The state of Texas (Hon. Rick Perry, Governor) appealed Bush’s memorandum to the Supreme Court, claiming the president had overstepped his authority by attempting to dictate law to state courts. The Supreme Court responded by dismissing Medellin’s case as being a state matter.

When the Texas supreme court rejected Medellin’s latest appeal, the Supreme Court agreed to hear it again. In 2008the court ruled, in a 5-4 decision written by Chief Justice John Roberts, that the Vienna Protocol was not enforceable because it was “non-self-executing” — that is, it required special legislation by Congress telling the states to obey. Roberts also ruled that the World Court had no authority to dictate to the United States, because the Reagan administration had withdrawn from the court’s jurisdiction in 1985, following a ruling against it in a case brought by Nicaragua. Roberts also wrote that enforcement of the Vienna Convention is the jurisdiction of the Security Council, and since Mexico hadn’t hauled the United States before the Security Council, there was no actionable violation.

In the spring of 2011, with yet another Mexican citizen facing execution in Texas, the U.S. Senate passed legislation requiring states to abide by the Vienna Convention. The House of Representatives failed to take action, however. On July 7, the Roberts court turned down the Vienna appeal of the condemned man, Humberto Leal Jr., saying it could not overturn a state court sentencing without federal legislation requiring it. The court also questioned the Obama administration’s claim in the case that disregarding its Vienna obligations could endanger American citizens traveling overseas. Leal was executed that same day.

Joshua Fattal, Shane Bauer and Alan Gross, meet your leaders, George W. Bush, Ronald Reagan, Rick Perry — and your special friend John Roberts Jr.

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