Reprinted from The Washington Times , 5am -- April 16, 1998
High court rules U.S. law on full parity with treaties
By Frank J. Murray
THE WASHINGTON TIMES
The Supreme Court's ruling denying a stay of execution for Angel Breard in Virginia Tuesday night affirmed that a more recent U.S. law trumps an older international treaty.
The justices ignored Secretary of State Madeleine K. Albright's concerns about treatment of Americans abroad when they plugged treaty loopholes that state prisoners often raise to escape punishment.
At the same time, the justices also served notice that:
Foreign nations may not sue American states, which are immune to lawsuits under the 11th Amendment to the Constitution.
Foreign consular officials cannot sidestep constitutional immunity by suing under laws meant to protect the civil rights of a "person within the jurisdiction" of the United States.
Primarily, though, the justices ruled that the 1996 Antiterrorism and Effective Death Penalty Act supersedes the 1969 Vienna Convention on Consular Relations in cases where mistakes are discovered too late.
Nevertheless, the State Department yesterday reaffirmed its commitment to the Vienna treaty. It said the International Court of Justice's intervention in the Breard case showed the importance for law enforcement officials at all levels to be aware of the U.S. obligation to notify arrested foreign nationals of their right to help from their embassies.
"We want to be sure that nobody around the world misconstrues the fact that this execution went forward for the fact that the United States does strongly believe that the Consular Convention is important, and intends to do all it can in good faith to see that it is abided by," State Department spokesman James P. Rubin said.
Meanwhile, in Asuncion, Paraguay, the government criticized the execution and said the United States had failed to comply with the treaty. "We are forced to renew our protest against this sad circumstance," it said, calling the execution "a violation of international treaties and human rights."
The Vienna treaty guarantees global travelers from 131 nations that signed the agreement speedy contact with consulates if they are arrested. It still requires police to advise foreigners of their right to call their consulates but sharply limits a criminal's ability to escape punishment for a crime if the police neglect to inform them.
A separate agreement by 41 of those nations requires notification, even if the suspect does not want his consulate called. Those 41 nations do not include Paraguay or Mexico, which is pressing a similar Supreme Court appeal for an Arizona murderer.
The unsigned opinion in the 6-3 high court ruling declared, "Paraguay is not a person as that term is used ... nor is Paraguay within the jurisdiction of the United States. And since the consul general is acting only in his official capacity, he has no greater ability to proceed under [the civil rights statute] than does the country he represents."
Justices John Paul Stevens, Stephen G. Breyer and Ruth Bader Ginsburg dissented, saying they would have liked more time to consider the request by the International Court of Justice that Breard be spared until the issues could be considered at a November hearing.
The justices needed just 24 hours to affirm that U.S. law "is on a full parity with a treaty" and to direct that any conflicts be resolved in favor of the one enacted most recently. The unsigned opinion represented the views of Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and David H. Souter.
Justice Souter, who often votes with death penalty opponents, explained in a brief note that he agreed the treaty involved was not a basis to set aside a murder conviction and death sentence, and set forth other legal objections unrelated to capital punishment.
Beyond simply rejecting the request, the court resolved several issues for American courts on a matter that could affect thousands of felons, including up to 60 foreign nationals on death rows throughout the country.
It also should make for an easy decision tomorrow, when justices consider the same issue in Mexico's case against Arizona on behalf of death row inmate Ramon Martinez-Villareal. That decision will likely be announced Monday.
United Nations members are obliged by the U.N. Charter to obey final rulings of the world court. Normally, any appeal would go to the U.N. Security Council, but the 8:22 p.m. Supreme Court order refusing to delay the 9 p.m. execution left no time for that.
Gov. James S. Gilmore III then denied clemency.
That left Breard, 32, to the executioner and short-circuited Paraguay's efforts to use the world court to save the Arlington, Va., murderer. Breard confessed from the witness stand that he fatally stabbed Arlington neighbor Ruth Dickie, 39, while under a satanic curse imposed by his father-in-law. The attack occurred during the course of a rape.
The Breard case vaulted onto front pages worldwide because of international controversy over whether a U.N. court in The Hague could interject itself in an American criminal case.
Mrs. Albright split with the Justice Department and asked Mr. Gilmore to delay the execution for diplomatic reasons, as the world court had requested.
"It is important to respect the various rules and conventions and laws that have been created to make that system work, something as simple as a parking ticket or as dreadful as what happened in Virginia with Mr. Breard," Mrs. Albright said Tuesday.
"There are a lot of Americans that travel abroad who sometimes get into trouble and who need to have the availability of our consular officers being able to visit them if they have been jailed unjustly, or even if they've been jailed justly, or if they find themselves in some kind of a difficult situation -- that they, in other words, are able to call home," the secretary said.
The State Department apologized in July to Paraguay for the omission by Arlington police. The Supreme Court and lower federal courts agreed with Virginia's contention that consular assistance would not have changed the outcome.
The United States, whose citizens took an estimated 50 million overseas trips last year, more than those from any other country, relies on the Vienna Convention on Consular Relations when Americans get into trouble in a foreign country.
Mr. Rubin said about 3,000 U.S. citizens are detained overseas every year, about half of them in "long-term detention." Of the total, roughly 400 were in Mexico, the most of any country, and a "large number" were also being detained in Thailand and Peru, he said.
"And so we work very hard to make sure that those governments in particular, where the likelihood of arrest is highest, understand our focus and concern about this convention," he said.Copyright 1998 News World Communications, Inc.
Reprinted with permission of
The Washington Times.
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