Over the weekend, quite a few e-mailers sent over the story of the Obama administration’s attempt to intervene in a controversial Texas execution.  Humberto Leal Garcia faces execution for a kidnapping, rape, and murder of a 16-year-old girl in 1994.  Leal, a Mexican national, had not been advised of his consular rights, and his case has become a cause celebre at the UN and a source of anxiety for the State Department:

The Obama Administration is taking the unusual step of trying to halt the execution of a Mexican citizen who has been sentenced to die for the brutal kidnapping, rape and murder of a 16-year-old girl more than 16 years ago.

U.S. authorities want to delay Humberto Leal Garcia‘s execution –scheduled for Thursday — for up to six months to give Congress time to consider legislation that would directly affect his case.

The federal government rarely intervenes in state death penalty cases.

Leal, a 38-year-old from MonterreyMexico, wasn’t told he could contact the Mexican consulate after his arrest-something his lawyer’s argue is mandatory under international law.

The UN has already appealed to Gov. Rick Perry for a stay, but in Texas, that decision has to originate as a recommendation from the clemency board, which has refused to provide one.  One federal court has already rejected Garcia’s claims of lack of due process regarding his consular rights, which is complicated by the fact that Garcia had lived in the US since he was 2 years old.  He was in his early 20s when he committed the rape-murder of a teen.  This is not the case of a tourist arrested for a crime and being unfamiliar with his rights and legal process.

Still, the federal government sees a need to protect itself from the impression that it won’t enforce the treaties that guarantee consular access for foreign nationals in legal trouble — and it’s not difficult to see why.  Americans traveling abroad might be more vulnerable than most, making assumptions about the universality of legal processes that simply have no basis in fact.  Any administration would want to protect the reciprocity of consular-access agreements in order to prevent other nations from railroading American citizens based on ignorance of their rights and access to effective counsel through consulates.

In fact, as Elizabeth Meinecke pointed out at Townhall, the Obama administration is not the first to intervene in this type of controversy:

It is rare for the federal government to go to the Court to support delays of execution in state cases.   The new legal efforts of Leal’s defense counsel and the Obama Administration are an attempt to gain a different outcome for him than similar efforts met three years ago.  Then, the George W. Bush Administration and defense lawyers made the attempt to save  another Mexican with the same treaty complaint, Jose Ernesto Medellin.  After losing his challenge in the Supreme Court, Medellin was executed in August 2008 in Huntsville, Texas.

Medellin and Leal were among 51 Mexicans, convicted of crimes in the U.S. without having access to a home-country diplomat, who won a World Court decision in 2004 declaring that the U.S. had failed to live up to its obligations under the Vienna Convention — that is, the duty to give those individuals a chance to contest their convictions because of the breach of the treaty.   Medellin’s case went to the Supreme Court after President Bush sought to directly order state officials to abide by the treaty.

The Supreme Court ruled at the time that Congress had not passed a law requiring state courts to comply with the treaty.  They refused to stay Medellin’s execution, saying that the prospect of new legislation (which had yet to be proposed) was too unlikely to justify any delay in the execution.  Seven years later, we find ourselves back in the same position, but the White House has now pushed for a bill to close the gap.  Patrick Leahy introduced it to the Senate three weeks ago:

On June 14, the chairman of the Senate Judiciary Committee, Democrat Patrick Leahy of Vermont, introduced a bill to carry out the Vienna Convention for foreign nationals like Leal.  The measure also would delay executions in such cases until the convicted foreign nationals had had a chance to show that their convictions violated the Convention.  Chairman Leahy, the new filings noted, has promised to hold a Judiciary Committee hearing in July.

Verrilli noted that the Obama Administration has been engaged in strenuous efforts to craft the new Leahy bill.  He also noted that the Bush Administration had not been involved in earlier efforts to craft such legislation, so that situation, too, has changed since the Medellin ruling.   The Solicitor General urged the Court to delay Leal’s execution until the end of the current session of Congress — which can run no later than next Jan. 3 — in order to give Congress time to pass the new legislation.

It is vitally important to U.S. foreign relations, Verrilli contended, that the U.S. obey the obligations it undertakes under global agreements like the Vienna Convention.

Garcia seems a poor poster boy for this effort, given his nearly lifelong residence in the US and the nature of his crime.  However, for those Americans who do travel abroad, reciprocity in consular access is no small matter, and neither the Obama or Bush administrations can be much blamed for taking an interest in protecting it.  If the US is to have the ability to sign treaties protecting such access while the Constitution denies states the power to negotiate such treaties on their own (Article I, Section 10), then Congress needs to make that jurisdiction explicit in law if courts won’t recognize it otherwise.