Capital Punishment is more important than the Law?

Great Debates
61

Well, gee, why not just let the German Supreme Court rule? Or how 'bout Malaysia or the Dominican Republic? Because it isn’t any of their business! Please, wring, show me where the U.S. has ever given the ICJ the power to decide how we handle our own criminal matters. Not disputes between nations, but criminal matters between a state and an individual. Until you show me that, I have no reason whatsoever to even consider letting some court with no authority issue non-binding orders and claim that we are obligated to follow them.

Sure I see it. I just don’t care. It would be completely unworkable to require a sovereign nation to treat foreign national criminals under the procedural standards of their home country. If I were to go to commit a crime in France, should the United States be able to bring an action in the ICJ disputing my sentence because I wasn’t read my Miranda rights? Or that I wasn’t indicted by a grand jury? Or that the French courts allowed testimony that would be inadmissible hearsay over here? Poppycock!

The only relevant questions you can ask in such case is whether the detention, investigation, and trial of the foreign defendant were procedurally fair. Now tell me, wring, what was not procedurally fair about what happened to the LaGrand brothers? How is it that not being told about the consulate affected their trial in the slightest bit? Please, be specific, as I don’t like to reverse convictions based on technical, yet totally harmless, violations of procedure.

Pjen

: Failing to read a defendant his Miranda rights does NOT let that defendant off the hook or require a new trial. You can be arrested, tried, and convicted of any crime in the book without ever being Mirandized. All Miranda does is render any confessions you may make inadmissible unless you were first warned. In other words, the defendant MUST show that harm resulted from not being Mirandized before that violation of rights will have any legal effect whatsoever.

So like wring, I ask you: how were the LaGrande brothers harmed by not being told they could call the German consulate? Again, be specific.

62

[QUOTE]
*Originally posted by Jackmannii *
**

There have been many genocidal actions through history that are ‘holocaust like’ in that purposeful extermination of a whole group of people by a state by reason of their ethnic identity was attempted. There have also been many political entities that were ‘Nazi-like’ in their use of racial purity regimes. Noting this is not disrespect for people who suffered at the hands of the Nazis between 1933 and 1945, it is merely recognizing the ability of humankind to commit atocities with impunity across history. Although the Nazi holocaust was the most technologically advanced, it does not stand alone.

The primary sources for both slavery and treatment of Native Americans shows many parallels to the imaging and treatment of Jews, Homosexuals, Gypsies and Political prisoners by the Nazis. I teach on the subject of imagery and devaluation and have considerable source material on this. A close reading of the events in Rwanda over the past decade shows close similarity of image and action to that employed in the Nazi holocaust.

I only brought this up because of a throw-away comment implying that modern-day Germans had no right to comment on human rights records of other countries because of its Nazi past- this I find totally unacceptable.

Virtually every Nation and political grouping has engaged in racial laws and mistreatment of people to the point of death. The Holocaust stands alone mainly because of the intense and technological manner in which it was carried out. Given the right conditions, social and technological, any nation or group is capable of the actions that led to the Holocaust.

63

minty you’re not getting the point.
Germany, the country, is attempting to insure that their citizen has been treated fairly, (yes, under US law, not the red herring you graciously dropped). But, they don’t want to just take our word for it. This is normal, and I think appropriate, and certainly exactly what the US would do if the tables were turned.

Yes, it’s a criminal case under US laws. No, we don’t have to keep handy all of the laws for other countries. Yes, the US needs to answer to the World Court how it is treating citizens of another country. Yes, that’s exactly where that sort of assessment should be.

We routinely rattle the chains of other governments to insure our citizen’s rights are protected (under the governing law of the country they’re in). Routine. We interceded in the Singapore case, we were right there for Ms. Berenson. Routine. Expected. Completely. So why is it so galling to you that Germany is doing the same thing for one of its citizens?

how were the Legrand’s harmed? I have no idea that they were. HOWEVER their country of origin, quite rightfully, doesn’t seem inclined to simply take our word for it that they weren’t, they wanted an independant review. Again, if you’re so certain that they weren’t harmed, why in the world would you object to an independant review of the procedure, especially when we would insist on the same thing?

64

Reply to Minty Green

1/ You say ‘Why should I accept the ICJ jurisdiction?’ The US did so when signing to the Treaty and arbitration by the ICJ. The German government will make a series of demands for changes. According to the links above the Justice Department has already changed procedure to make sure this does not happen again. I assume that any other foreign national who was not allowed consular access in the past will be able to try to use this as part of an appeal. The question is, ‘How often is the US willing to be hauled before the ICJ on this issue for past cases?’ There must be a limit to their embarrassment quotient.

2/ My point about Miranda (damned lazy typing finger) was that your requirement that the Lagrands should have brought up the consul referal themselves. The comparison is the taking of a statement amounting to an admission of guilt from a suspect and then allowing the police to say ‘Well, he didn’t ask me to read him his rights, so I didn’t’. You know and I know that if the person wasn’t Mirandized, then his statement is inadmissable.

3/ I am not sure of the quality of defence offered to the Lagrands, but an argument that a better defence, particularly at the penalty phase, would have assisted them is certainly arguable. But not now the US decided to kill them before the court rendered its verdict.

65

wring, we would lose entirely too much by allowing the ICJ to order the US to prevent the execution of a legally convicted foreign national.

In reading the judgment of the ICJ on this issue, it is intriguing to note that Germany waited more than 6 years before complaining to the ICJ about this issue. Even they don’t see the urgency that you see.

This is what Germany asked for:

This is another of their complaints about the provisional order not being followed:

I don’t often read things that frighten me, but this is scary stuff. Apparently, Germany, and the ICJ, believe that they have the power to order the Supreme Court, or they believe the Executive of the US can order the Supremes.

The US objected to the ICJ deciding whether the convention creates individual rights. Wring, when you write that the US agreed to arbitrate this matter, then breached an agreement, you write fiction. The US did not agree to the issue you cite. US law cannot submit to the issue Germany and the ICJ wish litigated.

For Germany and the ICJ to get their wish, the US must diminsh its sovereignty, then eradicate federalism. I say that’s too high a price.

Other countries are going to treat accused US citizens as they will without regard to this case. Countries either respect the rights of defendants or they don’t. We’d lose too much waiting for a tribunal without jurisdiction to make a ruling without basis and issue a judgment that can’t be enforced.

66

Reply to Minty Green

1/ You say ‘Why should I accept the ICJ jurisdiction?’ The US did so when signing to the Treaty and arbitration by the ICJ. The German government will make a series of demands for changes. According to the links above the Justice Department has already changed procedure to make sure this does not happen again. I assume that any other foreign national who was not allowed consular access in the past will be able to try to use this as part of an appeal. The question is, ‘How often is the US willing to be hauled before the ICJ on this issue for past cases?’ There must be a limit to their embarrassment quotient.

2/ My point about Miranda (damned lazy typing finger) was that your requirement that the Lagrands should have brought up the consul referal themselves. The comparison is the taking of a statement amounting to an admission of guilt from a suspect and then allowing the police to say ‘Well, he didn’t ask me to read him his rights, so I didn’t’. You know and I know that if the person wasn’t Mirandized, then his statement is inadmissable.

3/ I am not sure of the quality of defence offered to the Lagrands, but an argument that a better defence, particularly at the penalty phase, would have assisted them is certainly arguable. But not now the US decided to kill them before the court rendered its verdict.

67

according to links posted on the first page here

that should take care of the ‘we never agreed to nuthin’ point.

re: why Germany waited so long? have no idea, and doesn’t interest me. What does interest me, is that my country took actions that call it’s honor into question in front of the world. we agreed to arbitration, (via the 1963 Vienna Convention on Consular Rights), we went before the court, they issued a ruling to not execute the guy until they could examine the case and we executed the guy anyhow.

and I think that was wrong on many levels. Obviously, you disagree. But you keep repeating that ‘the US has the right to execute those we’ve adjudicated’ and I keep insisting that in all cases, they must go through the proper adjudication reviews. And in this case, since there were foreign nationals involved, that included the world court. And we didn’t do that.

as far as what the world court will do now, again, the cites were given on page one, I’ll repeat it here

(we actually admitted that we failed to comply here), also that by denying a review, that was a further violation of the treaty, Article 36, paragraph 2, that breached our obligation under a prior court ruling in March of this year (by executing the guy) they are then asking for a review of other German nationals who may be sentenced to die (unsure that there are any) but in any event, the US has now taken the step to review all DR inmates to see if there are other nationalities there and to make sure their international rights haven’t been violated.

So, it seems that the US has admitted to the court that there were problems in dealing with other nationalities, that we were in the process of fixing it. and the World Court has stated that if future incidents are brought to light an ‘apology’ will not be sufficient. Gee strong words.

Crimeny. We admitted that we handled this improperly, but denied them a chance to review it? Exactly how do you think our state department would react if, say, Libya sentenced one of our citizens to die, admitted they’d screwed the procedure up, but assured us that even without an independant review of the case, that they { Libya} were certain that the screw ups didn’t affect the outcome and buh bye to the guy??? Sheesh.

68

wring:

You’ve spent an lot of time in this thread saying stuff like “You’re missing the point.” Trust me, I get the point. I just don’t think it matters so much as to override the sovereignty of the United States. Now, on to the substance . . .

This is exactly what the U.S. would do . . . Not at all. Has the U.S. sued Peru in the ICJ over the Berenson trial? Or that delinquent kid in Singapore? Nope. Sure, we sometimes raise diplomatic hell over treatment of our citizens in foreign countries. But have we tried to get the ICJ to trump the judicial proceedings of a sovereign nation? Not that I’m aware of.

Germany wants to make sure its citizen has been treated fairly under U.S. law. Well then, the proper authorities to check with are the bodies that interpret and apply U.S. law: the U.S. courts. If Germany wants an “independent review,” fine by me. I don’t care whether it’s conducted by the ICJ or Amnesty International or Fidel Castro. They can “review” all they want. But the only people with any authority to determine what U.S. law requires in this case are the U.S. courts. Not Germany, not Tanzania, not the Justice of the Peace of Tierra del Fuego, and darn sure not the ICJ.

The US needs to answer to the World Court how it is treating citizens of another country. Nope. That’s what sovereignty is all about. If Germany doesn’t like it, they can “rattle their chains” as loudly as they like, just like we do when one of our citizens is getting screwed over. But they and the ICJ cannot force a legal judgment on the American courts.

If you’re so certain that they weren’t harmed, why in the world would you object to an independant review of the procedure? It’s not about “harm,” it’s about sovereignty. I don’t care if the ICJ would have agreed with us on every count–it still has no authority to require U.S. courts to pay it the slightest bit of attention.

(The yahoo link) should take care of the ‘we never agreed to nuthin’ point. No, actually, it doesn’t. We apparently agreed to arbitrate Vienna Convention disputes between the U.S. and other nations. The LaGrand case is not such a dispute. That was a criminal matter between the state of Arizona and the LaGrand brothers. If Germany wants the ICJ to declare that America should tell foreign national defendants about the right to contact their consulates, that’s all fine and dandy. But where does it say that the ICJ has the power to intervene in a case between a state and a foreign citizen who commits a crime? Citing the ICJ judgment itself only begs the question; on what basis do they assert that power, and has the U.S. ever abrogated its sovereignty by assenting to whatever that basis might be? Please, real cites this time, not just second-hand news accounts.

I keep insisting that in all cases, they must go through the proper adjudication reviews. And in this case, since there were foreign nationals involved, that included the world court. On what legal basis do you conclude that “proper review” includes the ICJ? Although I can certainly imagine a system in which international bodies were granted the power to adjudicate a dispute between a nation and a citizen of another country, I’ve seen nothing that shows the U.S. has assented to such a system. Until that happens, “proper review” starts with a grand jury in Arizona, then moves to a state trial court in Arizona, a jury of twelve people, the Arizona appellate courts, federal district court for the District of Arizona, the Ninth Circuit Court of Appeals, and the U.S. Supreme Court. It would be completely unprecedented to give an international court the power to trump American courts on a matter within U.S. jurisdiction.

Exactly how do you think our state department would react if, say, Libya sentenced one of our citizens to die, admitted they’d screwed the procedure up, but assured us that even without an independant review of the case, that they {Libya} were certain that the screw ups didn’t affect the outcome and buh bye to the guy? Gee, I imagine we’d be pretty pissed. Maybe we should bomb the crap out of Khadaffi’s kids again. But that still wouldn’t give the ICJ any power to compel Libya to do what it says.
Pjen:

‘Why should I accept the ICJ jurisdiction?’ The US did so when signing to the Treaty and arbitration by the ICJ. Not according to anything I’ve seen posted here. liebfels was kind enough to post the VC’s arbitration provisions on the first page, and it looked to me like we agreed to arbitrate VC disputes between nations. The LaGrand brothers were not, last time I looked, a foreign nation.

I am not sure of the quality of defence offered to the Lagrands, but an argument that a better defence, particularly at the penalty phase, would have assisted them is certainly arguable. Sure, it’s arguable. In fact, it was argued. They lost that argument because they couldn’t show any way in which their defense was inadequate.

69

Just so we understand each other, Pjen:

I have no problem with modern-day German citizens critiquing the U.S. or any other countries on their human rights record. Official denunciations by their government are another story.

Most students of modern history find the Holocaust unique in its horror. Equating it with ugly acts of colonialism, slavery, legalized abortion or annoying acts by contemporary civil servants threatens to dilute its impact and is offensive to many. This is something you and your students should know. Enough said.

70

minty I don’t understand how you can continue to say that the World Court isn’t involved. We agreed under the convention to do certain things, including informing citizens of other nations of their right to the consulate in criminal cases. we agreed that we did not do so. This was a violation of that treaty. The other party to that treaty (Germany) asked for review under the World Court.

We were being asked to answer the charge of failing to adhere to the specifications of that treaty in these criminal cases. Germany had an absolute right to bring us before the World Court, since we’d agreed to 1. abide by the treaty. and 2. go through arbitration with the World Court in matters of treaty issues. #1 check. #2 check.

I understand your concern about national sovreignty. Of course, we ignore that when it suits our purpose (NOreiga anyone? etc.), don’t we?

RE: Berenson, the kid in Singapore etc. Are you seriously claiming that the US kept a ‘hands off’ policy in those cases? We were absolutely there attempting to alter how those countries handled our citizens in criminal court. Absolutely. Did we take them to World Court? I don’t know, but if not, it may have been 'cause the other countries hadn’t violated the treaty by denying consulate contact (which was how Germany got us there). and even if we chose not to, so what? We were able to effect changes for our citizens w/o the World Court. Doesn’t mean that Germany shouldn’t attempt proper redress of it’s grievance w/the US in the proper forum.

71

First, the reason that Germany waited so long is apparently that they believed that the LaGrands’ German citizenship was unknown to US officials until 1992, when Germany was informed, but during the mercy hearing it was revealed that the US knew as early as 1982. Doesn’t seem to be anything nefarious here.

As to arguments about due process, the right conferred by the Vienna Treaty is Germany’s right to be informed and consult with the LaGrands. That right was, admittedly, violated. The LaGrands had no right under US or international law to see a German consul. At least according to what the treaty actually says. And I’m pretty sure that the US has never signed a treaty saying that the ICJ can tell us that the treaties we signed mean whatever they think they mean.

In short, the LaGrands recieved all rights accorded them under US law, while Germany did not recieve a right it was accorded under the Vienna Treaty. Thus, Germany brought a grievance against the US in the ICJ, which has jurisdiction to mediate such disputes. The LaGrands were not a party to that dispute.

The ICJ decided that the execution should be stayed until the dispute was resolved, which they might have had reason to do (for example, they may have wanted the LaGrands’ testimony to see if the US acted out af disregard for the Vienna Treaty or ignorance of the LaGrands’ citizenship), but seems more likely to have been an attempt to confer a right to consular consultation upon the LaGrands. The US ignored this request, which was not legally binding according to treaties signed by the US. The ICJ then decided that its order was indeed legally binding according to Article 41 of its Statute. That article is quoted in my first post, and I see nothing of the sort in there.

As to Article 36 of the ICJ’s statute, that seems to spell out that it does indeed have the authority to mediate the dispute between Germany and the US. The LaGrand brothers, however, are not a party in that dispute, and the ICJ has no authority to provide a remedy to them.

I have seen nothing to indicate that any court outside the US has ever had any jurisdiction in the LaGrand case or authority to stay executions in the US. I’m rather disturbed, in fact, that ICJ seems to have conferred upon itself that authority.

That is a right that Libya has under international law as a sovereign nation. Hell, look at the Lori Berenson case. Our State Department is doing little to help her, because Peru is a sovereign country, and can deal with people in Peru any way it sees fit.

72

minty green just pre-empted and further explained my next reply, so now I’m just left pointing out that Libya isn’t a signatory to this Vienna Convention.

And, the ICJ’s summary of the US argument over jurisdiction (note that the Associated Press is not cited as an authority):

Which is pretty much summed up as - the ICJ can hear disputes between nations, not the claims of individuals.

Jurisdiction, of course, is of paramount importance when deciding whether a tribunal can decide an issue. If you know that a tribunal has no authority over you, why would you wait around for it to decide?

73

waterj2, this is a disturbingly clever idea

please don’t repeat it, someone might think it a good idea and start using it.

74

(the selection of the country ‘Libya’ was random, you don’t like ‘Libya’ as an example, pick another country that has the dp and has signed the treaty)]

For those who have finally admitted that the US and Germany had issues, that the rightful place for said issue was in front of the World Court, hurray. FOr those who keep on insisting the focus is on the LeGrands and ‘they have no standing etc.’, the dispute was between the US and Germany (it was ABOUT the LeGrands, but they were not party to the dispute).

We admitted that we were in violation of the treaty. We admitted it. We didn’t wait to see what possible remedy may have been suggested. It ranged from ‘issuing a formal apology’, through ‘make some concerted efforts to not do it again’, both of which we have done. , they also could have requested a new trial or reduction in punishment. (which is by the way, pretty much what we did for Berenson, and for the kid in Singapore, we got them to reduce their sentence - so don’t attempt to claim ‘national sovreignty in criminal matters’ as an absolute).

We don’t know now what they may have suggested. 'cause we pre-empted them on the issue. And, again, I find that was a very short sighted, poor decision to make. We are now on record as having no particular interest in adhering to the agreed upon terms of a treaty (which aims at protecting citizens in host countries), nor in adhering to the conditions of an arbitration that we’d agreed to. Bad precedence IMHO.

75

Some of that’s arguable, but I’m with you so far . . .

Uh-oh, we’ve just fallen off the tracks. Germany was a party to the treaty, but it was not a party to the case it was asking the ICJ to review. It was Arizona v. LaGrand, not Arizona v. LaGrand and das Bundesrepublik Deutschland. Despite my repeated requests, nobody has cited any treaty language showing that the U.S. agreed to submit criminal matters to ICJ arbitration.

Actually, I thought then and now that the invasion of Panama was quite illegal. But I have to admit, it’s pretty convenient living in a country that gets to do the invading rather than the being invaded.

[quote]
RE: Berenson, the kid in Singapore etc. Are you seriously claiming that the US kept a ‘hands off’ policy in those cases?

[quote]
Not at all.

No. And that’s precisely my point. Peru and Signapore are sovereign nations every bit as much as we are. We can pressure them to change, just as Germany can pressure us to change. But the ICJ cannot make them change, even if it involves the interpretation of a treaty.

And remember: that Berenson girl is still sentenced to 20 years in jail in Peru, and that juvenile delinquent in Singapore still did get caned. Moral of the story: don’t go breaking laws in foreign countries then complain about your sentence because you’re not from around there.

76

Uh, you can read that monstrosity of a coding goof, can’t you? :frowning:

77

(yes, minty even tho’ it made my eyes cross, I could still read it.

Ok, I think we’re getting some where. (no where good, I’m sure :smiley: ) . The dispute, as I see it, was between Germany and US, about how their citizens were treated in the beginning of a criminal case. And I see that as different than being about the criminal case per se. So, the behavior that was in question on the part of the US was part of a criminal matter - but then frankly, that’s to be expected, no? When else is the notification of consulate folks more important, more crucial, then when it’s a police matter? So, your insistence that because there’s a criminal case involved therefore the ICJ shouldn’t be, seems more than a trifle odd.

weather of not the ruling would be binding - well, that’s the kettle of worms that has been opened, isn’t it?

We’ve had this world court for quite a while, and they’ve decided other cases. And in the past, it seems that most who’ve agreed to the arbitration hearing have included in it the idea that if you agree to arbitration, it kinda includes an agreement to the ruling, and so far, everybody’s been playin nice. See, you don’t go on Judge Judy, loose and then go back and say ‘well, Judy doesn’t have jurisidiction in this matter, so screw it, I’m keeping the ring’

I suspect this is the first time a nation that hasn’t ‘played nice’ with the touchy feely nature of the UN rulings (after all, there’s really not a lot they can do to compel compliance with anything - vote to ‘censure’ the errant state?), and we pushed them into a corner. While the EU don’t agree w/our dp stance, it’s got about a 50/50 world wide acceptance. I doubt that the Court was going to be able to do anything specific like attempt to rule that no executions of foreigners is permitted or anything like that. But by flagrantly ignoring that court, we pushed it into a corner. Their choices were to admit that they have no way of compelling compliance with their rulings (and so, why bother having the court or having nations go through those motions?), or do what they did, which was insist that they do have the right to compel compliance.

Had we played nice, they would have had the option to keep their illusion going by ‘demanding’ we appologize and promise to never do this again (both of which we’ve already done)Foreign diplomacy is much about appearances, and in this case we gave the appearance of a bull in a china shop.

(you did note that while there was still punishment for the Berenson woman and the kid in Singapore, that in both cases the punishment was reduced, and in one of the cases, a new trial was even done?)

78

Sure, that’s how Germany and the ICJ in its judgment want to portray this thing. But if all Germany was trying to work out was what the treaty required the U.S. to do, then why did the ICJ issue an injunction ordering Arizona not to execute the second LaGrand brother? Surely, it’s quite possible to determine what the treaty requires without also interfering with a murder case. That’s where the ICJ exceeded its its jurisdiction.

Quite the contrary, actually. ICJ rulings are routinely ignored. They exist mostly for the sake of making the winning party feel good about itself.

It’s not supposed to. But then again, it’s not supposed to care what a country’s internal laws are. Nevertheless, the ICJ is composed of judges who are quite political in their opposition to capital punishment. Even if they wouldn’t purport to bar LaGrand’s execution, they might well attempt to order a new trial in an attempt to delay the execution for another decade or more. Why give 'em the chance, especially when the U.S. courts had already decided that the trial had been perfectly fair? (I note that even now, nobody has challenged that conclusion. Why should a perfectly fair trial piss off anybody in Germany? A: It didn’t. They just don’t like the death penalty, and used this meaningless/harmless breach of the VC as an excuse to attack it.)

Both goals were accomplished through standard diplomatic pressure, not by attempted use of an international tribunal to subvert the foreign nations’ sovereignty. Notice that you don’t see me bitching about the Pope convincing the governor of Missouri to commute that death penalty a couple years ago? That sort of thing is fine with me. But if the Pope issues an edict purporting to require the governor to commute a death sentence, I’m gonna be pissed.

79

Perhaps the ICJ will hold the United States to be in contempt of court and issue a fine in the amount of billions?

Marc

80

Berensons case Seems that the US absolutely interferred with another sovriegn nations’ criminal justice system.

and, in the Singapore case, not only was there no question of the kid’s guilt, but we didn’t even allege there were any procedural issues, but yet, our Congress, President, consulate etc. all clammored that the punishment was too severe succeeding in getting it reduced.

So, all this clamoring about how the US is sovreign nation, and that no nation should interfere in another’s criminal matters etc, etc, ? Like I said way before, we seem to have no difficulty holding other countries to standards that we’re unwilling to stand by ourselves. and we did it pretty damned publically here.