Justice Calls for Life

This case implicates United States foreign-policy interests of the highest order.

Generally, when someone from the Department of Justice says that sort of thing it's while prattling on about how national security requires that some innocent victim of extraordinary rendition be denied the opportunity to sue the government for kidnapping and torture.  Or maybe it's to explain why the court must not provide the defendant any information about the satellite photographs showing whatever it is.  Or it's to explain just why it is that Shrub or Obama or whoever next sits in the big chair in the Oval Office can drop bombs willy nilly and without Congressional approval or oversight despite that pesky part of the Constitution (Article I, Section 8) that gives to Congress the power "[t]o declare War."

Not this time, though.

This time it's the start of DOJ's explanation of just why the Supreme Court should prevent Texas from murdering Humberto Leal on Thursday.

I wrote about Leal's situation the other day.  Nobody denies that he was denied his rights under a treaty (the Vienna Convention on Consular Relations) that binds the United States.  Nobody denies that a duly enacted treaty is binding on the nation and the states.  It's just that, up till now at least, the courts including the Supreme Court have said that although the treaty was violated and although it's binding, it isn't enforceable.

Which sounds bizarre unless you're a lawyer.  See, here's the idea.

There's a treaty. Article VI of the Constitution says a properly enacted treaty

shall be the supreme Law of the Land.

You might think that means that it can't be violated.  You'd be wrong.  Violate at will.  Until Congress passes a law that says this binding treaty is actually binding.

Oh, the states aren't supposed to violate it.  It's just that it doesn't matter, doesn't legally matter, if they do.

Except that maybe it does matter.

This case implicates United States foreign-policy interests of the highest order. Indeed, this Court has recognized those interests to be “plainly compelling.” Medellin II, 552 U.S. at 524. Petitioner’s execution would cause irreparable harm to those interests by placing the United States in irremediable breach of its international-law obligation, imposed by the ICJ’s judgment in Avena, to provide judicial review of petitioner’s Vienna Convention claim. That breach would have serious repercussions for United States foreign relations, law-enforcement and other cooperation with Mexico, and the ability of American citizens traveling abroad to have the benefits of consular assistance in the event of detention.

Shrub, back when he was President, urged Texas to make up for its breach of the treaty and comply with the ICJ's judgment.  Texas refused.

We are the Sovereign State of Texas and don't give a damn what those effete foreigners and our pussy-whipped former governor have to say.  We didn't sign off on any damn treaty.  Anyhow, these guys are wetbacks and deserve whatever they get.  Fuck 'em.

OK, that's not exactly how they put it.  But that was the guts of it.  And since SCOTUS wouldn't actually order a remedy (and who knows what would have happened if it did? - prospective presidential candidate and Texas governor Perry has made clear that he and Texans so love the United States that they might one day decide to secede from it), then the hell with it.

Except there's that bill in Congress.  And DOJ says the Court should stay the execution until the end of the term (January 3, 2012)

in order to allow the United States additional time to meet its international-law obligations.

You know, to pass the law that says Texas has to obey the law.

Otherwise, Leal - and US foreign policy interests - have until Thursday.

Leal--US Amicus Brief