Monte Kuligowski
Humberto Leal Garcia and U.S. federalism
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By Monte Kuligowski
July 14, 2011

Humberto Leal Garcia, Jr. was executed by lethal injection by the Texas government on July 7, 2011.

Garcia was an illegal alien from Mexico who abducted, raped, sadistically tortured and murdered a 16 year-old girl on May 21, 1994 in San Antonio, Texas.

If President Obama had gotten his way, the United States Supreme Court would have stayed the execution. Mr. Obama pleaded with the Court to stay Garcia's execution in the hope that Congress would pass a law to permanently block the execution.

The current thinking goes something like this: International treaties are binding, but have no impact on the individual criminal laws of the states unless Congress passes law binding the states to the requirements of the relevant treaty. At least, that's the holding of the U.S. Supreme Court from a ruling in 2008.

Specifically, Mr. Obama wanted (and wants) Congress to pass a law agreeing with a 1994 ruling of the International Court of Justice (ICJ). The international tribunal interpreted the Vienna Convention on Consular Relations of 1963 to mean that foreigners in receiving countries must be informed of the right to have consular consultation when charged with a crime.

Not informing the accused of his international rights can mean that the guilty goes free.

Mr. Obama believes that Garcia's execution placed "the United States in irreparable breach of its international law obligation." Obama also believes that the "breach [will] have serious repercussions for United States foreign relations, law-enforcement and other co-operation with Mexico, and the ability of American citizens travelling abroad to have the benefits of consular assistance in the event of detention."

It's debatable, to say the least, as to whether Congress can bind the states to international law in areas in which sovereignty has been retained by the states under the U.S. Constitution.

The fact that Obama had to beseech the Supreme Court and not just pardon Garcia points to our unique federalism system of government. Mr. Obama would have ordered a stay to Garcia's execution if he could have — but Garcia was not charged with a federal crime.

The Vienna treaty states that, "if he [the detained foreigner] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner."

In context of Garcia and domestic criminal justice, the "receiving State" is none other than Texas. But, Texas per the U.S. Constitution can have no treaty with Mexico to require compliance with international law. Our system of constitutional federalism — through which the states retain a great deal of exclusive jurisdiction and sovereignty — creates quite the dilemma for application of certain international laws.

Maybe it would be better for the federal government to avoid international treaties which purport to affect the sovereignty of the individual states.

Mr. Obama and his media would have us chew our fingernails over concerns that U.S. citizens abroad now stand in danger of retaliation. The government-approved media would have us believe that the standing of the United States has been blemished and weakened because Texas had the audacity to execute a murdering rapist over the objections of the President of the World.

Indeed, CBS News asks a rhetorical question in its headline, "Will Texas execution hurt those detained abroad?" The consensus among the ruling class is a resounding, yes — unless Congress can intervene to apply the treaty to the states.

For all the "irreparable harm" against America's interests envisioned by the globally-minded elitists of the world, it should be noted that Garcia was afforded full constitutional protections before, during and after trial.

Though he was executed for his heinous and unspeakable acts, Garcia enjoyed all the constitutional rights of U.S. citizens, including the assistance of legal counsel and trial by jury.

In fact, the reason for having a right to consular consultation for detainees per the Vienna Convention is sparsely mentioned by those crying "breach" of international law. Not every country is so gracious as to appoint legal counsel at the taxpayers' expense to represent those charged with criminal offenses. If a foreigner is charged with a crime in some third world country that doesn't appoint counsel, contacting a consul would likely make the difference in securing legal counsel for trial. In such cases, consular assistance is imperative.

In the matter of Garcia, even if he had consulted with a Mexican consul does anyone really believe that additional rights would have been afforded or that the outcome of the trial would have changed?

Rather than defend Texas, Obama impulsively advocated on behalf of Garcia and the "international consensus."

When it comes to U.S. sovereignty or the sovereignty of the individual states versus international law and opinion, I'm still waiting for President Obama to take the side of the United States.

© Monte Kuligowski

 

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Monte Kuligowski

Monte Kuligowski is an attorney and writer whose legal scholarship, including "Does the Declaration of Independence Pass the Lemon Test?" (Duke Journal of Constitutional Law & Public Policy), has been published in several law journals... (more)

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