Medellín, in fact, had a lawyer representing him in his trial. But he never raised any claim under the Vienna Convention on Consular Relations during his state trial. And if he had, it would have been very easy to vindicate those rights. The trial judge could simply have said, “OK, let the defendant contact the Mexican consulate and receive whatever assistance the consulate is willing to provide.” It could have been resolved right there, on the spot, during trial. But Medellín’s lawyer never raised the claim.
Under ordinary U.S. criminal law, if you fail to raise a claim at trial, that claim is forfeited. And you can’t come back years later with a brand-new legal claim that you never raised in your own defense. But the World Court decided that the ordinary rules of American criminal law didn’t matter. It didn’t matter that Medellín and fifty other convicted murderers across the country had never raised their treaty claims in their state court trials. In the eyes of the World Court, the American judicial system was required to ignore its own law—to ignore our own rules—and to throw out the convictions on the basis of a claim that was never even raised at trial.
The World Court ruled for Mexico even though most countries on earth—including Mexico—don’t allow collateral attacks to convictions at all. In other words, in most other countries, if you fail to raise a claim at trial or on appeal, it’s game over. There is no habeas proceeding. The United States grants more procedural protections to foreign nationals in our courts than those foreign nations provide to American citizens, but the World Court decided that still wasn’t enough.
Medellín went before the U.S. federal courts and argued that, based on the World Court’s decision, his conviction should be overturned. The federal district court disagreed and so did the Fifth Circuit Court of Appeals. And so Medellín appealed the case to the U.S. Supreme Court.
I was the Texas SG at the time, and I ended up arguing the case not once, but twice, before the U.S. Supreme Court. The first time it went up on appeal was in 2005, and it precipitated a remarkable battle within the George W. Bush administration.
Remember the time. This was the beginning of President Bush’s second term. Alberto Gonzales had just been named attorney general, and Condoleezza Rice was now secretary of state. The Bush administration was pivoting, with its leading actors trying to distance themselves from the perception of being rogue cowboys. Indeed, Condi was in the midst of what some were calling the “we love the world tour,” traveling across Europe and being fêted abroad as the glamorous new secretary of state.
Gonzales and Rice disagreed on what to do in the case. Both had spent the first term of President Bush’s administration in the White House; she as national security advisor and he as White House counsel. Both were deeply trusted and respected by President Bush. It was rare for the two to disagree. And yet here they did.
I’ll never forget the forty-five-minute conference call that Greg Abbott—at the time my boss and the attorney general of Texas—and I both had with Harriet Miers, who was then the White House counsel. Abbott and I argued strenuously that under no circumstances should the Bush administration side with this child rapist and convicted murderer. And, even more so, under no circumstances should the U.S. government cede our cherished national sovereignty to the World Court of the United Nations.
This should have been an easy call. As governor of Texas, George W. Bush had himself rejected similar claims from convicted murderers, and Abbott and I both argued vigorously to Miers that he should do the same now.
Miers listened, and the issue appeared to be headed for an Oval Office showdown: Condi versus Al, head to head. The Department of Justice, to its credit, argued that the United States should do the right thing—fight the World Court and resist any usurpation of U.S. sovereignty. But the State Department, looking to curry favor abroad, argued for capitulation—to grant the authority sought by the World Court of the United Nations.
But before the issue came to a head in front of President Bush, DOJ blinked. Al and Condi agreed upon a compromise.
I found out about it shortly thereafter, when U.S. SG Paul Clement called me on the phone. “Ted, are you sitting down?” he asked. That’s not an auspicious way to begin a conversation. “I have good news, and I have bad news,” Paul continued. “The good news is that the Department of Justice is going to participate in the case before the Supreme Court and is going to agree with Texas that the World Court does not have authority over the U.S. justice system.”
That sounded good. But the bad news, Paul told me, is that the president had just signed an order—a two-page “memorandum”—that purported to order the Texas state courts to obey the World Court anyway. Not because the treaties required it—to the contrary, DOJ agreed that they did not. But out of international “comity,” our desire to make our allies happier.
Paul argued that I should be very happy with this outcome because, he said, the virtue of this novel theory that Justice was putting forward was that the president kept his finger on the trigger. Under this theory, Paul said, the president gets to decide when to use this new presidential power to order the state courts to obey foreign tribunals.
My response to Paul was twofold. I said that, number one, that doesn’t give me a whole lot of comfort, given how the power is being exercised today, with the Department of
