Dahlia Lithwick wrote an account of the oral argument to a case involving two American citizens (but they have Middle Eastern sounding names, so it's different*) in custody in Iraq -- the United States has practical control over them, while others have technical control. They sought habeas protection in U.S. courts and the lawyer for the U.S. government counseled respect for the local sovereign. In Iraq, as elsewhere, we have somewhat selective views about that.
Ditto when President Bush required Texas to follow an international body's ruling as to our treaty obligations for foreign prisoners, but then announced that from that moment forward (treaty obligation be damned) the administration would not honor obligations of that sort. Thus, when the Supremes decided 6-3 (Stevens somewhat more cautiously) that he couldn't do that -- the treaty did not require it, since it was not "self-executing" (treaties aren't quite the law of the land after all without more), and he didn't have the power to interfere with state authority in this fashion.
This lead me to reply to a comment by DL thusly, which with a bit more, can serve as my response to this ruling. I start with the relevant quote:
Garre asks the court to respect the determination of the executive branch and the "justice systems of other sovereign nations." Priceless.
Today's not really the day to ask for the Court "to respect the determination of the executive branch" though the part about "justice systems of other sovereign nations" is a better bet, if you replace it with "sovereign states" as in Texas.
The Supremes, surely to some people's (on both sides of the question) surprise,** decided today that President Bush cannot require Texas follow an international tribunal's ruling involving our government(s) treaty obligations to inform prisoners of their rights to contact their countries when put in custody.
Given fears Alito and Roberts would give the executive too much power, there is a certain irony here. On some level, we can be satisfied that a basic principle is upheld here -- even if we reject its application -- that the executive is not always right. This Court surely has competing interests, for instance, executive power vs. concern for international law / support of local discretion. Still a footnote noted among those treaties that lower courts held needed congressional legislation to give them practical teeth (i.e., "non-self executing") was one:
holding that the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is non-self-executing);
The practical harm to the President (at least this one) is therefore unclear. The Bush Administration after holding Texas responsible in this case made it clear that it would not longer respect the holding, by a body we agreed to honor, requiring the treatment of non-citizen prisoners at issue here. And, they surely aren't too gung ho about delaying the execution and/or final judgment as to the prison sentences of convicted murderers and the like. The ruling does suggest limits on executive power (though, in partial answer to Breyer's concerns, the majority seems to leave some loopholes for special situations), but international law is the victim.
Justice Breyer explains why the dissenters think the treaty at issue was already the "law of the land," and did not need further congressional enabling legislation require the state to enforce it. The Supremacy Clause explains for those who miss it -- Breyer pointing to originalist laden examples back to the 1790s -- how treaties are not just agreements between nations. They are the "law of the land" per domestic law, and clearly sometimes provide individuals certain rights, not just some moral obligation for which only foreign policy pressures can uphold. Stevens' concurrence underlines some doubt on the particulars, but perhaps it also underlines how we do not have any fully consistent liberals on the Court.**
[It is not defended on these terms, but also, I would suggest that given the fact that the treaty provision affects the rights of those in custody, there is a due process aspect to all of this. I think the Due Process Clause probably can be interpreted to require the notification at issue here as well as some means to remediate its deprivation. If so, a treaty that can fairly be interpreted to secure the same thing only underlines the correct path. More ways -- see, e.g., aim for the sky legislation that needs funding -- to claim to be doing something while being able to not do it is bad enough without this added wrinkle.]
The Administration was more concerned about having free reign -- Breyer's dissent could very well at times restrain their discretion. It probably wasn't really a big fan, esp. since Breyer mostly was agnostic about the issue of executive discretion, relying on more general law of the land/treaty issues. He also voiced realistic matters such as the problems with passing enabling legislation in certain instances, perhaps explaining why treaties were declared the "law of the land" in particular. Breyer also showed how reference to foreign law is quite relevant to interpreting our Constitution, including how some countries (like the United Kingdom) do not have such a rule, while others do.
Anyway, other sovereigns went to an international body we agreed to respect, said body held against the U.S., but the Supremes decided it didn't matter. Thus, "justice systems of other sovereign nations" did not really win out today. The justice system of sovereign states did, I guess.
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* One is "a dual U.S.-Iraqi citizen with a noncitizen wife and three small U.S.-citizen kids" while the other is "a dual U.S.-Jordanian citizen, married to a U.S. citizen, with six American children. He served in the Minnesota National Guard."
** The sentiment was that a 5-4 ruling would give them another hearing to determine if the deprivation of contacting their consulates mattered enough, partially since such a principle would likely not really have much practical effect. This was deemed like something that would be seen as attractive to Justice Kennedy, someone who is getting attacked from all sides these days.
Update: A positive spin on the concurrence, which in part asks states to respect treaty obligations even if they are not compelled to do so by specific enabling legislation, can be found here. I find it suspect ... for one thing, if "Medellin's lack of consular notice" was so meaningless, why have the obligation in the first place? And, the failure of certain states to take Stevens' advice ala those Breyer referenced in his dissent when English creditors were involved, suggests the problem with that tack.