The Medellin case: What is Bush thinking?

He may be thinking that he’s the Presidente of Mexico. Or he may be thinking that world courts ought to be able to determine US criminal justice policy. Beats me what he’s thinking, but he’s wrong.

At the Supreme Court today, a dangerous principle is being asserted to help an odious man.

The odious man is José Ernesto Medellín, who is on death row in Texas for his role in the 1993 gang rape and murder of two teenage girls. The dangerous principle is that the president of the United States has the power to order state courts to set aside state law in the interest of his foreign policy.

Although Medellín has spent most of his life in this country, he is a citizen of Mexico. Under the Vienna Convention, law enforcement should have informed him when he was arrested that he could contact Mexico’s consulate. He was not so notified. Late in the appeals process he raised the issue. First Texas courts, and then federal courts, found that it would not have changed the outcome of his trial if he had contacted the consulate.

But then the International Court of Justice purported to order the U.S. to reconsider the case because Medellín (and similarly situated prisoners) were not notified of their ability to contact the Mexican consulate. President Bush followed up with a memorandum that, the administration now says, orders state courts to comply with this ruling.

The crimes at the heart of the case are awful, and are the kind of crimes for which governor George W. Bush routinely meted out the death penalty.

On a summer night in 1993, Jennifer Ertman and her friend Elizabeth Pena, both students at Houston’s Waltrip High School, took a shortcut home through a park from another friend’s house when they encountered Medellin and seven other members of the Black and Whites gang.

Raul Villareal, 17, was being initiated into the gang, which required him to fight other gang members for several minutes. Following the ritual, the teens sat in the park drinking beer.

Around 11:30 p.m., as the Ertman and Pena passed the young men, Medellin grabbed Pena and dragged her down a hill.

Testimony showed that Ertman was able to run away but she heard Pena’s cries and returned to help. The other boys grabbed Ertman, and for the next hour proceeded to rape, sodomize and beat the girls before strangling them.

The final act of brutality came when the girl’s bodies were stomped on to make sure they were dead, court testimony shows.

The boys’ were so brazen about their actions that one of them, Derrick Sean O’Brien, even turned up smiling on videotape taken by local news crews reporting at the scene.

The girls’ bodies, meanwhile, were found four days later in a nearby woods.

If not for the fact that Medellin is a Mexican citizen, the ICJ would not have intervened in the case and Bush wouldn’t have sided with them. So we’re once again in the position of seeing our president extending legal protections to foreign nationals who commit crimes against Americans that Americans don’t have. And he’s probably wrong on the merits.

As the state of Texas points out in its brief, the president is asserting an authority that intrudes on Congress, state legislatures, and state and federal judiciaries. The Senate ratified the Vienna Convention with the understanding that it created no individual rights and would not be enforced in state courts. The administration actually agrees that the convention doesn’t create individual rights and can’t be enforced in state courts. It argues, however, that the president has the unilateral power to figure out how to follow treaty obligations.

If the president’s argument wins, then as Ramesh points out, the Senate’s advise and consent role in ratifying treaties becomes meaningless: The president can just do whatever he wants.

That’s too much power for any president to have, and in this case it’s being misused to stay the execution of a brutal criminal who shouldn’t even be in the US at all. The president ought to lose this case, and he ought to be asked why he has intervened on behalf of a child killer.

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