Yesterday was the deadline for respondents'-side briefs in No. 04-5928,
Medellin v. Dretke -- a follow-up to the Court's decision in
Breard v. Greene, 523 U.S. 371 (1998), and a closely watched case concerning whether and to what extent U.S. officials and courts must defer to treaty interpretations of the International Court of Justice (ICJ). The Acting SG has filed a very interesting and potentially provocative amicus brief on behalf of respondents -- announcing a new presidential determination, which in turn supports an argument about
presidential and state-court enforcement of the Vienna Convention that might result in the Court vacating the case without reaching the merits.
In both
Breard and
Medellin, foreign nationals who had been sentenced to death by state courts (in this case, in Texas) filed habeas petitions seeking to overturn the judgments on the ground that state authorities had violated the Vienna Convention by failing to inform them that they had a right to contact their home-country consulates. In
Breard, the Court denied certiorari, and refused to stay a death sentence, on the ground that the petitioner had defaulted on his treaty claim by failing to raise it in state (Virginia) court. The Court rejected the argument that the treaty trumped procedural-default rules law on two grounds: (i) It construed the Vienna Convention itself
not to trump such rules; and (ii) it held that, in any event, any treaty-based relief must satisfy the requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA), which was enacted subsequent to ratification of the Vienna Convention, and which denies an evidentiary hearing to a habeas petitioner alleging a treaty violation if the petitioner has failed to develop the claim’s factual basis in state court.
There are two basic substantive questions in
Medellin concerning the meaning of the Vienna Convention: Does the Convention create an "individually enforceable right" for a foreign criminal suspect to consult with his or her nation's consular office? And, if so, does the Convention require a signatory party (such as the U.S.) to waive procedural defaults under domestic law for someone raising such a right? Petitioner argues that eleven months ago, in a case called
Avena, 2004 I.C.J. 128, the ICJ answered both questions in the affirmative, thereby disagreeing with the U.S. Supreme Court's own treaty interpretation in
Breard. (The Acting SG's brief denies that the ICJ answered those questions specifically, but concedes that the ICJ held that the Convention requires U.S. courts to attach "legal significance" to a violation of the consular-notification provision of the treaty.) The questions presented in
Medellin are whether the Supreme Court should, or must, defer to the ICJ's interpretation of the treaty.
The briefs on petitioners' side can be found here. Texas's brief is
here. On Friday, the Acting SG made
an unusual motion for leave to exceed the 30-page limit for its amicus brief in support of Texas, and Justice Scalia granted the government 50 pages. The ASG filed
the Government's brief yesterday, in which it sided with Texas in two important respects:
