POLITICS JULY 13, 2011
On Thursday, July 7, the Supreme Court refused a last minute stay of the execution of Mexican national Humberto Leal Garcia, despite the undisputed fact that Leal was tried and sentenced to death by a Texas court without ever being informed that he had a right to seek the assistance of the Mexican Consulate following his arrest. Within hours of the high court’s denial, Leal was executed by lethal injection. Case closed? Not exactly.
Given that there are dozens of other foreigners on death row in the U.S. who were similarly deprived of consular representation, this matter is not going to be—nor should it be—put to rest any time soon. Regardless of whether or not Leal was guilty of rape and capital murder (and he probably was), legal commentators are likely to look at last week’s decision, which split the Roberts court along typical 5-4 lines, and criticize it as yet another conservative narrowing of criminal defendants’ liberties. But don’t just blame the judicial branch on this one. Blame the executive branch, too.
Here’s the history: In 2004, Mexico brought legal action against the United States in the International Court of Justice (ICJ), claiming that the U.S. had violated the rights of dozens of Mexicans under the Vienna Convention on Consular Relations (VCCR). In its ruling in Avena, the ICJ held that 51 death row defendants were deprived of their right to consular representation. The ICJ instructed the U.S. to grant “review and reconsideration of convictions and sentences” in order to ascertain whether the failure to notify the defendants of their consular rights prejudiced their cases.
In 2005, President George W. Bush issued a memorandum stating the U.S. intended to honor Avena by “having state courts give effect to the decision.” The Supreme Court, in a 2008 decision involving another Mexican national who was ultimately executed by Texas despite clear VCCR violations, ruled that “neither Avena nor the President’s Memorandum constitutes directly enforceable federal law.” Knowing that precedent, President Barack Obama attempted to halt the Leal execution by having the State Department’s chief legal adviser, Harold Koh, write a letter to Texas Governor Rick Perry asking for a postponement of Leal’s execution “to afford a reasonable time” for Congress to consider legislation that would provide “post-conviction review” of VCCR violations. As Koh wrote, the letter was “simply a request.” But, if a presidential memorandum hadn’t been enough to stop an execution, certainly a mere request letter was destined to be unsuccessful.
Conventional wisdom suggested that Obama didn’t have much recourse, so he did the best he could to prevent Leal’s execution. This, however, reflects a misunderstanding of the plenary foreign-affairs powers available to his office. Indeed, there are two legal solutions that the president could have invoked to bar Texas from executing Leal: executive agreements and the Zschernig doctrine. Obama, and all presidents after him, would be wise to consider these measures in the future.
For nearly a century, the Supreme Court has consistently held that executive agreements reached by the president with foreign governments are as binding for the U.S. as a treaty ratified by the Senate. So, for example, to prevent another execution like Leal’s, a president could enter into an executive agreement with Mexico establishing a mechanism for the ICJ’s ruling in Avena to be honored, and that pact would become the law of the land—thus binding local and state authorities, in addition to the federal government, to its terms.
If an executive agreement were to become too difficult to negotiate (for instance, if time were of the essence), the president would have another option available to him—that is, to seek an emergency stay by invoking the Zschernig doctrine in court pleadings. The doctrine is a constitutional authority carved out by the Supreme Court in its 1968 Zschernig v. Miller decision. That ruling struck down an Oregon inheritance law because judges had used it to make disparaging comments about communist countries in Eastern Europe. Pursuant to the holding, states’ actions are to be pre-empted if there is a “great potential for embarrassment or disruption” in the nation’s foreign affairs. As the Court noted, when states have “a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with [international] problems,” their actions should be forbidden. In 2003, the high court revisited the Zschernig doctrine in American Insurance Association v. Garamendi and held it to be good precedent. Applying it to strike down a California law that required insurance companies to disclose their Holocaust era practices, the Court reaffirmed that “state action with more than incidental effect on foreign affairs is preempted, even absent any affirmative federal activity in the subject area of the state law, and hence without any showing of conflict.”
There is no question that executing foreign nationals whose VCCR rights have been violated could lead to “embarrassment or disruption” in America’s relationships abroad. Failure to honor this—like any—international legal obligation not only undermines the rule of law, it also jeopardizes vital national interests regarding the welfare of Americans overseas, especially those who might be arrested and tried for a crime. In international relations, where reciprocity is considered the “golden rule,” the more the U.S. keeps disregarding international law, the higher the risk that other countries will return the favor and deprive Americans of their rights when they’re detained overseas. As the Solicitor General argued in his amicus brief in support of the stay, a breach of international legal obligations brought on by Leal’s execution entails “serious repercussions for United States foreign relations … and the ability of American citizens traveling abroad to have the benefits of consular assistance in the event of detention.”
Of course, the strongest method for assuring due process in matters where VCCR obligations have not been honored would be to reach executive agreements and to invoke the Zschernig doctrine in court pleadings. But the latter, which doesn’t require interaction with and consent from a foreign government, should be sufficient enough to guarantee that justice is done.
The executive branch makes and executes most of the nation’s foreign policy, and there is no reason that, in future cases like Leal’s, the president cannot intervene more effectively. He should be forceful in trying to halt the legally problematic executions of foreign nationals that continue to violate international law, offend foreign governments, and undermine national interests. He just needs to exercise the constitutional authorities entrusted to him, which, so far, have been overlooked.
Louis Klarevas teaches international relations at New York University’s Center for Global Affairs. You can follow him on Twitter @Klarevas.