The follow through of two important Supreme Court rulings occurred this week.
First, the rape/murder of two by an eighteen year old gang member (and others)* who was a Mexican national led to his execution, even though his consulate was not informed at the time of his confinement pursuant to international treaty obligations. The Supremes held that this was a right without an individual remedy, since Congress never passed enabling legislation, though international tribunals repeatedly disagreed. And, the President did not have the power to force Texas to provide it (a separation of powers ruling that burdened rights in this instance) and it passed the buck when requested to do so. Anyways, Texas figured he didn't raise the matter (as if he had reason to know it) soon enough.
[The governor noted that "the world court has no standing in Texas." Texas not being part of the "world," apparently, or required to follow the law of the land -- including treaty requirements -- even if there are no individual remedies. Remember back in the day when states was supposed to honor extradition even when it worked on the honor system?]
Some member of Congress actually started the ball rolling to actually provide a remedy for defendants in this situation, that affects our citizens too, but no stay was granted to provide much relief in this case. Originally, some thought the Supremes would actually grant relief, but largely symbolic, amounting to some hearing that very well might suggest not telling the consulate amounted to harmless error. Didn't happen. The Bush Administration isn't a great defender of international law either -- they pragmatically pushed for the individual protection in this case, but then stated it would no longer take part in consulate security as a matter of policy. Such an executive power grab almost made them losing a good thing.
Talking of executive power grabs, the Hamdan war crimes trial ended with a split verdict. One should recall that even if it was a total acquittal for war crimes, he still could be detained as an enemy combatant. So, you had something of a "heads we win, tails you lose" situation. Anyway, it is unclear if he actually was convicted of a "war crime," at least one that could be applied to his conduct without ex post facto limitations (a restraint on power, so not tied to citizenship or even lawful residency). BTW, the war crime matter was raised in the Hamdan SC ruling, but only the plurality focused on it. Still, it still has bite as a matter on review, though by then Bush might not be around any more. What will the next guy do?
Hamdan could very well have been tried in the criminal courts -- KSM he is not -- but that would ruin it -- this was a test case of sorts, and fwiw, the government was had some success there. The split verdict even made things look pretty fair -- even if it wasn't -- since Hamdan was found not guilty on some counts. Talk about him having a surface to air missile, so obviously guilty, apparently was a bit more hazy -- some problems of proof. This underlines the value of actually having a somewhat fair trial. Anyway, on the merits, this was most probably an abuse of the process, including trying him this route in the first place. Hamdan simply is not "war criminal" (even if technically one) material -- too many of these "are you kidding" prosecutions just makes the "war" on terror look bad.
As noted here by a former Bush insider, such excesses is self-defeating, even (especially) if you support their overall efforts. What else is new?
---
* The heinous crimes took place around fifteen years ago, so we have the usual situation where the person is in prison for a long time and suddenly we get around to executing them. This seems off, as off as executing someone for a gang related crime when they are still a teenager. Putting aside the international incident issues, this underlines how even heinous crimes raise troubling issues in death penalty cases. The first link has a picture of the victims -- they don't erase the issues, they just add to them.