By Adam Martin
When the State of Texas executed Humberto Leal Garcia Jr. last night, it entered the United States into an international incident. The United Nations' top human rights official has said the execution broke international law, and within the United States the lethal injection created a sharp controversy that ended in the Supreme Court approving the move over the objection of the president. Leal was a Mexican citizen, and the International Court of Justice in 2004 found that he, along with 50 other inmates, hadn't been treated according to the Vienna Convention of Treaties because officials arresting them hadn't informed them of their right to contact their consulates. It's a stern truth about Texas that the state executes more inmates most years than any other in the nation, but this was its most closely watched in years. Now it's time to figure out what the impact will be for U.S. citizens, U.S. foreign relations, the International Court of Justice, and the political futures of those involved.
A tangling of jurisdictions: This case has states' rights rubbing up against federal oversight, with an international body chiming in. Basically, the way the hierarchy of enforcement works is this: The state of Texas gets to decide whether or not to execute a criminal, and the U.S. Supreme Court is the only federal entity that can tell it not to, but only on constitutional grounds. In this case, the International Court of Justice weighed in on the decision as well, saying Mexico was right when it charged the United States had violated the Vienna Convention. But the International Court of Justice relies on the U.N. Security Council for its enforcement, and that's where it becomes a problem. The Security Council can't take action against one of its five permanent members, which include the United States, so it doesn't really have a say here, aside from making a suggestion. But the U.S. was moving to comply with the court's decision, albeit very slowly. The Atlantic's Andrew Cohen pointed out today that Congress had been working on a bill to "expressly adopt consular rights," to supplement the requirement of the Vienna Convention, and that the Supreme Court's decision flew in the face of that effort.
The Court's majority went out of its way to allow Texas to proceed with an execution, even though the state would have been only minimally harmed in waiting a few more months (or even a few more years) to proceed. The Court did so despite broad concerns, expressed by officials in both of the other two branches of government, that the Leal's execution now would harm the interests of the United States abroad. And, by doing so, the Court compounded rather than solved an important legal problem raised by the Leal case.
But the court ruled that it couldn't stand in the way of Texas's right to execute Leal because of a piece of legislation that hadn't yet been enacted, and in the end it voted 5-4 to allow it.
A threat to Americans abroad: One of the great fears about executing Leal was that, if the United States violated the Vienna Convention, it would "embolden foreign countries to treat Americans' right to consular access with a similar disdain," wrote Talking Point Memo's Thomas Lane. The Obama administration filed a brief with the Supreme Court saying that honoring the Vienna Convention by staying the execution would serve U.S. interests as well as Leal's. "These interests include protecting Americans abroad, fostering cooperation with foreign nations, and demonstrating respect for the international rule of law," it wrote. But the question of just how much more danger American nationals traveling abroad might actually find them in today, as opposed to yesterday, remains open. As Lane points out, "Mr. Leal was not a tourist or the type of foreign national the consular treaty was arguably designed to protect. It remains to be seen whether foreign nations will accept this nicety."
A setback in U.S.-Mexico relations: If the average tourist abroad mightn't be individually affected by the court's ruling and Texas's actions, the overall relationship between the United States and Mexico has suffered a distinct setback, argued Luis Hernandez Navarro in The Guardian today. Mexico doesn't practice capital punishment, and its citizens are likely to resent the application of the ultimate penalty on one of their own.
The infliction of the death penalty on Leal has caused deep anger in Mexico. It is viewed as a racist act of injustice, set in a context of growing anti-Mexican sentiment. Mexican undocumented workers in the US have been accused by xenophobic groups of being criminals who steal jobs and threaten the white culture. Several states have adopted more than 50 anti-immigrant laws. Some of them forbid offering jobs to undocumented workers, and others deny them the right to buy or rent houses.
A political maneuver for Rick Perry: Texas Governor Rick Perry is weighing a possible Republican presidential run for 2012, so the high-profile death-penalty case represents a politically charged issue that, for him, can be seen simultaneously as a boon and a landmine. Before the execution, Chris Strohm wrote in the National Journal, "If he stays the execution, he runs the political risk of being called weak by conservatives. Allowing it to go forward, it could cast Perry as a staunch conservative who doesn’t give in to the demands of Washington and international pressure. But it also invites comparisons to former President George W. Bush, who was criticized for a go-it-alone approach on foreign policy." But afterward, The Guardian's Megan Carpentier made the case that it could only help him. She invoked the New York governor's race of 1994, when George Pataki beat Mario Cuomo, in part due to his promise to reinstate the death penalty. She points out Americans' overwhelming support for giving murderers the death penalty, and notes, "in Perry's home state, bowing to the pressures of a Democratic administration, an international court or a foreign government would actually be worse than executing even an innocent man."
