Thumbing his nose at President Obama, Texas's Republican Governor Rick Perry allowed the Thursday evening execution of a Mexican national, even though the action violated U.S. treaty obligations under the 1963 Vienna Convention on Consular Relations to U.S. states.
The Vienna Convention stipulates, among other things, that citizens of one country arrested in another have the right to consult, "without delay," with their own country's consulate, and to be so informed of that right by the arresting authority. If the arrested person so requests, the police must take the initiative by, for example, faxing pertinent information to the prisoner's consulate.
Yet for years, state governments, especially that of Texas, have simply ignored the Vienna Convention, and neither allowed arrested foreigners to contact their consulates nor informed them of their right to do so. In Texas currently, there are reportedly about 17 citizens of Mexico awaiting execution in state prisons, who have been denied their rights under the Convention. One of them was Humberto Leal Garcia, the man executed by lethal injection on Thursday night. Leal, who was brought to the United States without papers as a baby, was convicted of assaulting and murdering a 16-year-old girl, Adria Sauceda, in 1994, while he was under the influence of drugs and alcohol. He asserted, through attorneys, that he would not have been convicted, let alone sentenced to death, had he been informed of his rights, and had he been able to coordinate his defense with the Mexican consulate. However, before he was executed he took responsibility for the murder and apologized to the victim's family.
We have been through this before. During the 1990s, Texas similarly asserted that the Vienna Convention did not to apply to foreign citizens on its death row, because although Congress approved the Vienna Convention, which thus became part of the U.S. "law of the land", it never passed specific legislation ordering state governments to comply with the treaty. However, various comments by Perry and supporters raise doubts as to whether Texas recognizes that international treaties signed by the United States are binding in Texas at all. The ultra right has been claiming that the existence of such treaties constitutes foreign interference in U.S. judicial proceedings. It is perhaps not irrelevant that Perry is considering running for the Republican nomination for president in 2011, on a fierce "law and order" platform.
Even former President George W. Bush, after some time, tried to push Texas to comply with its obligations under the Vienna Convention. He came to understand that the Convention does not only protect foreign citizens arrested in the United States, but also U.S. citizens arrested abroad. Indeed it is notorious how quickly Americans arrested in Mexico and other places shout, "I demand to talk to the American consulate." And they are generally granted that right, which Perry seeks to unilaterally deny to foreigners arrested in his state.
The case during the Bush administration eventually ended up before the U.S. Supreme Court, which, reflecting its right-wing majority, ruled in 2008 in favor of Texas, i.e. that Texas authorities do not have to obey the Vienna Convention because Congress failed to pass legislation ordering them to do so. Likewise evidence obtained in cases in which consular contact was denied cannot be suppressed because of the violation of the Convention. By this logic, only federal prisoners have to be given their rights under Vienna, and they are a small minority of foreigners arrested in the United States each year. Other signatory countries do not assert such claims.
Obama asked the Supreme Court to delay the execution while Congress considers legislation, introduced by Senator Patrick Leahy, D-Vt., positively ordering state governments to comply with the Vienna Convention.
Numerous public figures, including military officers, asked Perry to stay the execution, the latter because U.S. military personnel serving overseas could be subjected to unfair prosecution should the U.S. be deemed to have waived participation in the pact. However, the Supreme Court, by a 5 to 4 margin, refused to grant the stay and Perry allowed the execution to proceed, the latest of about 200 executions carried out in Texas under his watch.
Corrected 7/19/11: Due to an editing error, an earlier version of this article greatly overstated the number of Mexican citizens awaiting execution in Texas. The figure has been corrected in this version. We apologize for the error.