Legal trickery…

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Yesterday the New York Times reported:

Prompted by an international tribunal’s decision last year ordering new hearings for 51 Mexicans on death rows in the United States, the State Department said yesterday that the United States had withdrawn from the protocol that gave the tribunal jurisdiction to hear such disputes.

It’s a new—and legally questionable—manifestation of the administration’s desire to have no infringements upon its power. It all started with a memo from President Bush to Attorney General Alberto Gonzales, directing state courts to review cases of non-citizen prisoners who claim that they didn’t get access to their home-country diplomats, an act generally mandated by the International Court of Justice.

That memo seemed odd given the administration’s general distaste for international institutions. Then the pieces starting coming together. Yesterday, Secretary of State Condoleezza Rice sent a memo to UN Secretary General Kofi Annan declaring that the U.S. would wtihdraw from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes. A brief translation: “The protocol requires signatories to let the International Court of Justice (ICJ) make the final decision when their citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad.” This legal safeguard has often been used to fight the sentences of foreigners who are facing the death penalty in the U.S.

Here is where things start getting good. It turns out that the U.S. Supreme Court is scheduled to hear the case of Jose Ernesto Medellin, a Mexican currently on death row in Texas, on March 28. But thanks to the earlier memo to Gonzales directing a “review and reconsideration” in state courts, the Supreme Court case now appears moot at this point. Moreover, Medellin’s case would fall exactly under the ICJ’s purview, but given our convenient withdrawal from the protocol, the ICJ no longer has jurisdiction in these cases. So, Bush declared that Texas state courts grant a new trial to Medellin—and some 51 Mexican nationals currently in a similar situation—in the name of the principles of the ICJ, but then effectively took the enforcement power out of the Supreme Court and ICJ’s hands.

Is there any hope? Well, the Supreme Court may not have a go at this case this term, but it will probably see it again. That’s because Texas’ state judges are pissed, and questioning the legality of the President to make demands on their state courts. (For the legal ins and outs of the President’s claim vs. Texas state court’s claim, check out SCOTUSblog.) If Texas state courts refuse to acquiesce to the President’s demands, the case will probably head right back up to the Supreme Court.

Also, it has yet to be established whether the President can immediately and single-handedly withdraw from the Optional Protocol. From a preliminary scanning of the Vienna Convention on the Law of Treaties, Miami law professor Michael Froomkin finds an article that states “a party shall give no less than twelve months’ notice of its intention to denounce or withdraw from a treaty…” (Read more at his personal blog discourse.net.)

It looks like this administration is not only tired of international courts impeding on its power, but our own Supreme Court, not to mention Congress. Those pesky checks and balances…

SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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