- The Washington Times - Wednesday, March 26, 2008

The Supreme Court yesterday said President Bush lacked the legal authority to tell a Texas court to grant a new hearing in the case of a Mexican national on death row in the 1993 gang rape and murder of two Houston teenage girls.

In a 6-3 decision, the court said Mr. Bush overstepped his authority when he signed a February 2005 memorandum to Attorney General Alberto R. Gonzales ordering the Texas court to reopen the case of death-row inmate Jose Ernesto Medellin, who confessed to the June 1993 crimes.

The ruling, written by Chief Justice John G. Roberts Jr., said Mr. Bush erred in siding with a 2004 decision by the International Court of Justice when it said Medellin’s conviction and those of 50 other Mexican nationals nationwide violated the 1963 Vienna Convention, which gives those arrested abroad access to their home country’s consular officials.

“The authority expressly conferred by Congress in the international realm cannot be said to ‘invite’ the presidential action at issue here,” Chief Justice Roberts said. “At bottom, none of the sources of authority identified by the United States supports the president”s claim that Congress has acquiesced in his asserted power to establish on his own federal law or to override state law.”

Chief Justice Roberts” 89-page opinion said that while Congress had authorized the president to represent the United States before the United Nations, the ICJ and the Security Council, his authority “speaks to the president”s international responsibilities, not any unilateral authority to create domestic law.”

The ICJ, also known as the world court, said new hearings should be ordered to determine whether any of the cases had been affected by the inability of those arrested to speak with consular officials. Medellin was in the United States illegally at the time of his arrest.

In ordering the review, Mr. Bush said the United States had agreed to abide by ICJ rulings, arguing that his declaration was reason enough for Texas to grant a new hearing in the case.

One of Medellin’s attorneys, Donald F. Donovan, called the ruling a “departure from the original intent of the Constitution and over 200 years of enforcement of treaties by U.S. courts.”

Joining in the majority opinion were Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Dissenting were Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice John Paul Stevens agreed with the ruling but did not sign onto the majority opinion.

Justice Breyer said the ruling put at risk “American citizens who have the misfortune to be arrested while traveling abroad,” and diminished “our nation”s reputation abroad as a result of our failure to follow the ‘rule of law’ principles that we preach.”

White House press secretary Dana Perino said Mr. Bush was disappointed by the decision and would review it to see how it might affect international relations. Some legal analysts have said the ruling could have implications for other international agreements if they cannot be enforced inside the U.S.

Mrs. Perino also noted that “while we urged a different result, we respect the court’s decision and will abide by it.”

“The argument of the United States in this case in no way condoned or defended the heinous crime,” she said, noting that the administration’s position was focused on the authority it thought the president had to compel a state to comply with international treaties.

Texas Solicitor General Ted Cruz had argued that Mr. Bush did not have “unilateral authority to force the state courts to obey a decision of the world court.” Under Texas court rules, he said, Medellin was obligated to raise claims of procedural error at trial and did not do so.

Medellin was arrested days after the June 24, 1993, killings of Jennifer Ertman, 14, and Elizabeth Pena, 16, and gave a written confession. Police told him he had a right to remain silent and have an attorney, but not that he could request assistance from the Mexican Consulate.

Convicted of murder in the course of a sexual assault, a capital offense in Texas, he was sentenced to death in October 1994. In 2003, Mexico brought a lawsuit against the United States at the ICJ on behalf of Medellin and 50 other Mexicans on death row. The ICJ ruled for Mexico in 2004.

The Criminal Justice Legal Foundation, a California-based group that filed a “friend of the court” brief on behalf of the family of one of the slain girls, said the ruling held that treaties do not override state law unless and until Congress implements them with legislation.

“The controversy over a treaty signed 45 years ago has delayed justice in this case which involves a brutal, remorseless murderer,” said Kent Scheidegger, the foundation”s legal director. “As soon as the lethal-injection controversy is resolved, which we expect to happen this year, justice can finally be carried out in this case.”

Jon Ward contributed to this report.

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