Addington behind Bush gambit on Vienna Convention

As Time notes, both anti-U.N. type right-wingers and internationalists alike were baffled earlier this week over the Bush Administration arguing against the state of Texas that a Mexican national convicted of murder should get a new trial because, contrary to the 1967 Vienna Convention, he never had a chance to be aided by Mexican consular officials.

But, Vice President Dick Cheney’s legal counsel, David Addington, appears to have been behind this political chess playing:

Back in 1969, the U.S. had joined the Vienna Convention on Consular Relations, part of which requires countries to give arrested foreigners access to consular officials. … The Administration renounced that part of the treaty after the ICJ ruled Medellin should get a retrial. (The U.S. still abides by the parts of the Treaty governing immunity for embassy officials and sovereignty of embassy buildings.) Yet Bush told Texas to retry Medellin anyway — since the ICJ ruling came before the U.S. backed away from the treaty. In essence it was a double power grab: Bush wanted the right to unilaterally leave a treaty — and still order state courts to comply with obligations while the treaty was in effect.

The Supreme Court said treaty implementation details were up to Congress. That, on the other hand ignores the clear language of the Constitution that a treaty, when approved by the Senate and signed by the president, becomes part of the “supreme law of the land.”

Most treaties, the Court ruled, don't automatically apply domestically unless the full Congress passes a separate law specifying how and when the treaty should be implemented. … Law professor Marty Lederman of Georgetown University, writing on the widely read Scotusblog after the decision was handed down, called the majority opinion by Chief Justice John Roberts "an implausible interpretation" that was "potentially very troubling for construction of treaty obligations going forward." He worried that by letting states ignore treaties unless Congress ordered them to abide by them, the Supreme Court had opened the door for chaos in compliance with all international law.

Of course, that then gets into knotty issues of treaties versus “executive agreements,” which need the approval of both houses of Congress, but only by simple majorities — and are nowhere mentioned in the Constitution. (That, in essence, is how John Tyler did an end run around the Constitution when leaving office in 1845 and got an independent Republic of Texas admitted to the Union without a formal treaty.)

As Time notes, most countries approve formal treaties in that fashion, just like other legislation. Time tries to put a silver lining on the issue, arguing we may move in such a direction, perhaps through enabling legislation being attached to treaties. But, whether that itself would require constitutional amending or not is unclear.

Regular readers here should not be surprised to know my thought that, if this is something that would require a constitutional amendment, by changing the powers of the Senate, it would be the perfect time to do that as part of broader changes giving us a more parliamentary government.