And AFAICT Texas is not obligated to inform him. It is like the fact that Garcia may not have known he had the right to remain silent even before being arrested. But the police were under no obligation to inform him.
Regards,
Shodan
Y’know, there’s something in the wording of the treaty, at least what has been quoted in this thread: it reads as though there is a presumption of unitary statehood - that the signatory internationally-recognized-as-sovereign nation-state has direct control over the criminal justice apparatus that will interact with the individuals. I can see confusion breeding where that meets the USA’s legal structure of most criminal matters being the bailiwick of “sovereign” subnational states.
(Y’know, I don’t think that phrase means what we’re talking about here, but I think I get what you mean) And I agree, there is no reason to stop a lawful, regular process to wait for pending legislation with possible changes. Yet, my point was that ***neither ***would I see any reason to ***rush ***action in order to avoid the prospective changes. (And to be clear, I have yet to see evidence this was the case here) Or to put it another way: If an execution is scheduled for April, and a vote on a bill that could have an effect on it may be coming up in May, well, that’s too bad for the culprit. The criminal dies in April. But if the execution is scheduled for *June *and the vote on the bill may be coming up in May, then that’s too bad for the hangman. The criminal lives to see June at the very least.
IMO when we punish, we should do so because we have/need to, not because we want/like to; and do the deed clinically, not eagerly.
And there are those, including me, that feel he received more compassion than he ever deserved
Police are most definitely required to let a suspect know he has a right to remain silent when they arrest him.
It’s part of the Miranda warning.
In fact I think they’re actually required by law to read to him off a card in whichever language he’s most comfortable with.
It’s not an issue of whether or not Leal Garcia deserved to be executed or deserved to be notified of his right to a consular attorney. This is an issue of whether the government has to follow its own laws. Our government signed a treaty which makes this a law. And our government should follow the law. We should have given Leal Garcia his legal right to contact a Mexican consul, allowed him a full defense, and then, if the evidence indicated his guilt, punish him up to and including his execution. But at every step of the way, the government should obey the law.
Or is there anyone here that wants to argue that it’s okay for the government to break the law when it thinks it has a good reason? Or when it thinks it won’t be held to account for breaking the law?
It’s not so much that the treaty presumes a unitary state; it’s that the treaty parties recognise that different states are differently organised, and it’s up to each state to work out how to give effect to the treaty in it’s own domestic law and procedures. This is not something the treaty can dictate, so the treaty is silent on the point.
That’s why treaty signature and treaty ratification are different events. A state signs a treaty to indicate that the text is finalised, and that it intends in good faith to implement it and become bound by it. But states aren’t actually bound by treaties until they ratify them in accordance with their own domestic procedures, and they are supposed, in the interval between signature and ratification, to take whatever steps will be needed in the domestic arena to give practical effect to the treaty.
So, properly speaking, the US should have made effective arrangements to ensure that non-nationals would in practice be afforded the right of consular access before it ratified the treaty. How it was to do that was a matter for the US, and this includes the question of how to deal with the fact that police and criminal procedures are, largely, state issues.
Possibly somebody at the time thought that friendly advice from the State Department to state and local authorities would be enough to ensure that, in practice, non-nationals were afforded consular access. Clearly, however, we’ve known for over a decade that it isn’t, and the US is in quite an embarrassing position as a result. It isn’t honouring its freely-assumed treaty obligations. It failed to take the steps it should have taken before ratifying the treaty, and this has been evident to all for many years. It’s under a continuing obligation to give effect to this treaty, and any problems presented by the federal/state divide are problems which the US must accept responsibility for solving (in fact, which it did accept responsibility for solving when it signed the treaty).
If the US finds itself, with the best will in the world, simply unable to solve these problems and give effect to the treaty, then it ought to withdraw from the treaty. That would be even more embarrassing (not to mention disadvantageous to Americans who find themselves arrested abroad) and nobody wants that. Besides, everyone knows that there is a constitutional basis for solving the problem; the constitutional provision on treaties being part of the law of the land already quoted allows Congress to pass legislation which will give effect to the treaty, and which will pre-empt inconsistent state law. There’s no legal or constitutional impediment to implementing the treaty, therefore; merely a lack of political will to do so. In the meantime, it does not reflect well on the US in the international sphere that it commits itself to give effect to freely-undertaken obligations, and then persistently neglects to do so. Why would another state be interested in entering into treaty obligations with the US, if treaty obligations mean so little to the US?
Look, there are two very separate issues here. The first is whether Garcia’s conviction should have been reversed due to the treaty violation. The answer to that one is a definitive no*.
The second is whether the US is in compliance with the treaty, and the answer to that one is also no.
Neither has any effect on the other. The fact that the US has not complied with its treaty obligations is irrelevant to Garcia’s conviction because his confession occurred before the treaty obligation was at issue.
*assuming, arguendo, that the Vienna Convention on Consular Relations of 1963 is not self executing, which is the position SCOTUS has taken.
But now we’ve gone full circle. What is the law? The US is dualistic, we separate international vs. domestic law. A treaty remains international only until we implement it domestically.
The treaty was deemed non self-executing in 2008 (i.e., the treaty didn’t automatically become domestic law upon ratification). So it’s not domestic law until a federal statute enacts it. However, the US still has an international obligation to follow the treaty it signed regardless, and the US breached that obligation in this case. Texas did not. Texas can only violate it’s own law and enacted federal laws (and the constitution). It did neither of those from the time they got Leal’s confession until they executed him. They followed the law.
No, Texas can violate international law and treaty obligations too. They may not have done so here, but if Rick Perry sends the Texas National Guard to occupy Mexican territory he’s violating the law.
Well, the Mexican equivalent crosses the border into the US often enough. We’re just trying to balance things out
Well, I’m thinking, States don’t enter treaties, therefore they can’t breach them. Texas was the cause of the United States violation of the VC in the Leal case, but I don’t think they would be sued for the breach (say in the ICJ), the US would, because the US is the party to the treaty.
If Rick Perry did something, the US could sue to stop him (like an injunction under the 1th Amendment? or whatever), but whatever treaty he breached by his actions, would be a federal/US violation with Mexico, because Texas is not a party to any treaties, the US and Mexico (nations) are. Perry can obviously violate US law and the Constitution.
Maybe I’m thinking about this to basically, I’m definitely open to correction and encourage it. It’s an interesting point.
I think you have it right. In the wildly unlikely event that the Texas National Guard invaded Mexico, Texas would be instrumental in a breach by the US of its international obligations.
Generally speaking, the internal arrangements of an internationally sovereign state (like the US) are the business of that sovereign alone. Other countries do not get to interfere or pass judgment; that’s what sovereignty means. But, because it is the business of the sovereign, it is also the responsibility of the sovereign. Internally, mechanisms like federalism or a strict separation of powers can raise “command and control” issues about securing compliance with international obligations, but the sovereign cannot plead those issues at the international level to excuse a breach of international obligations.
In the somewhat more likely event that a police force arrests a foreign national and he is not afforded the consular access rights which the US has committed to afford him then, once again, the US in is in breach of its international obligations and, at the international level, the US is accountable for this. It makes no difference whether the police force concerned is a Texan police force or the FBI.
The sovereignty/autonomy/independence/what you will of the Texan authorities is a purely internal matter for the US; the international community is neither entitled to object to it nor obliged to respect it. As far as the US is concerned, the Texan national guard and/or a Texan police department may be Texan forces, but as far as the rest of the world is concerned they are forces of the USA, and the USA is accountable at the international level for their actions.
I’ve already posted this but I’ll do it again:
I think that’s clear. A treaty is law as soon as we sign it. Not international law - it’s the law of the United States of America. There’s nothing in the Constitution about self-executing laws and non-self-executing laws. We don’t have to pass a law that says another law is real.
Can anyone explain to me the difference between a self-executing treaty and one that isn’t? Also, how does the court decide one way or the other? Because I really don’t know and you’d be fighting my ignorance.
Yes, you are quite correct. What I said was that they did not have to inform him of the right before they arrest him.
Garcia had the right to remain silent even before he was arrested. Custodial interrogation, non-custodial interrogation, arrest - he can remain silent throughout all of them. But he didn’t choose to exercise that right, and it bit him in the ass when he incriminated himself and was subsequently convicted. The police are under no obligation to inform him of his right to remain silent during non-custodial interrogation.
Similarly, he had the right to a consular attorney (instead of a US attorney). But he did not exercise that right. And AFAICT the police did not have to warn him of that right. Just as he has to voluntarily exercise the right to remain silent during non-custodial interrogation, he has to voluntarily exercise his right to a consular attorney instead of a regular attorney.
Ignorance of the law is no excuse. Maybe he didn’t know he could remain silent during non-custodial interrogation. Too bad for him - the police don’t have to warn him of this until they arrest him. Likewise for the consular attorney.
IANAL.
Regards,
Shodan
Thank you, UDS.
I suppose the failure of political will may lie in a hesitancy to be seen as passing a federal statute imposing upon the states to enforce a provision that protects foreign citizens. I can imagine some factions (especially, what do you know, in places like Texas) being quite riled up at something like that. So instead the Federal Government limited itself to a polite request and suggested guidelines.
BTW I also agree that the breach of the Convention may not ex proprio vigore have nullified Leal’s arrest, trial and sentence. OTOH the Mexican government is bound to do whatever they can and reach for what legal recourse may apply or what public opinion pressure may be generated on behalf of a citizen, one would expect no less.
As mentioned before, the devil’s in the details. The phrasing though is kind of iffy, oten it is really more like it’s not enough to proclaim that XYZ is the “law of the land” in the grand sense, but there has to be also some specific statute or case law to tell the system exactly how that is going to be put in effect, who has to do it, how it’s paid for. I mean, equal protection and the right to bear arms are in the constitution itself, and we have libraries’ worth of statute and case law regarding what do they even mean, and how do people get to exercise those rights (voting acts, marriage acts, segregation/desegregation, concealed carry, open carry, “assault weapons” bans, waiting periods, etc.).
But we do have to pass laws that lay out the specific process of how we apply them.
The treaty language, standing alone, is unclear and ambiguous.
But your sudden love for using only the text of the Constitution is intriguing. Since the exclusionary remedy for confessions taken without a Miranda warning is ALSO nowhere to be found in the Constitution, I assume you’re OK with scrapping it?
Sure. But we’re not talking about who gets sued. I was responding to your specific assertion that…
They didn’t follow the law, since Garcia was never given consular access. Whether or not there is a remedy for their failure to follow the law where Congress has not enacted a statute executing the treaty is a different issue.
Well it is certainly not the case that you need not distinguish between a self executing and non self executing treaty. A properly ratified treaty is certainly law of the land but just like any law of the land if its process is not spelled out specifically it can have no meaningful effect in our legal system.
If we pass a law saying “The people require healthcare.” and that is the full text explain how we can implement it. Our legal system requires more than that to implement laws. Unfortunately in our relationship with international society it must be recognized unless a treaty is very explicit in its text implementing legislation is requires in addition to ratification. Further if that legislation is not immediately passed future congresses are not bound to pass legislation and nothing under U.S. law can compel congress.
It thus seems to me the suggestion upthread is the proper one, and the U.S. should pass implementing legislation prior to ratification.
Or at least contemporaneous with ratification. Makes more sense to do it then since the Senate is already considering the treaty itself.