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June
27, 2003
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Ray McGovern
Cheney, Forgery and the CIA
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Wolfowitz Instructed the CIA to Investigate
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Adam Federman
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June
28, 2003
Bush, the Death Penalty
and International Law
Why
the US Should Allow Foreign Law Students to Represent Foreigners
on America's Death Row
By
NOAH LEAVITT
The Bush Administration appears to have a few
clear priorities. First, although he often does not act like
it, the President wants to be seen as complying with at least
some aspects of international law (even if he interprets those
laws quite differently from the rest of the world). Recall Ari
Fleischer's frequent refrains of "we are treating
Guantanamo detainees according to international standards."
Second, the Administration does not want
to spend any of its precious tax dollars defending criminals
on Death Row. Think of the speed with which capital defendants
are often whisked through the justice system based on shoddy
allegations by untrustworthy witnesses and defended by novice
or (even worse!) sleeping attorneys. Texas and several of its
southern neighbors seem especially adept at expediting the machinery
of death.
After many hours racking my brain on
this problem, I've finally figured out how the Administration
can both appear to be complying with binding international legal
precedent and at the same time reduce even further the
money it spends for legal assistance to prisoners on Death Row.
The trick? Easy! The U.S. should
allow foreigners who come here for their legal studies to defend
prisoners on death penalty, but should restrict them to only
defending foreign nationals. In fact, if the Bush administration
wants to comply with two recent binding decisions of the International
Court of Justice, the U.S. must do so.
Currently the United States admits that
it executes foreigners who commit certain crimes in America without
giving them access to legal defense in violation of international
law. So doesn't it make sense that the administration should
allow foreign lawyers to practice law in the United States for
the specific purpose of defending these foreign individuals?
Yet, as might be expected, the exact
opposite has been the case, leading to highly inefficient, unfortunate
and rather ironic outcomes. A recent news story from Louisiana
indicates that the United States is preventing the very lawyers
who could be giving the U.S. the appearance of complying with
its binding legal obligations from practicing their craft.
European Law Students
and American Legal Dilemmas
The first order of business is to recognize
the penchant of certain Southern states to prohibit foreign law
students from practicing certain types of politically-sensitive
law, i.e. capital defense work.
A few years ago, Louisiana passed such
a law prohibiting non-resident foreigners from taking the state
bar exam, effectively eliminating their chances to practice law
in the Big Easy. This year, Emily Maw, a Welsh student in the
top of her graduating class at Tulane Law School in New Orleans,
filed suit challenging this law.
Ms. Maw is passionate about fighting
the death penalty. In a recent interview with the American Bar
Association Student Lawyer magazine, she stated that doing
capital defense work got her through the drudgery of law school.
She is smart and dedicated. Her clients are lucky to have someone
as committed and tenacious as this young woman.
While at first this story may strike
some as odd, it is in fact part of an unreported but significant
and growing trend. For the past several years, Europeans have
been coming to the United States to attend law school, take state
bar exams in the Deep South, and practice criminal defense law.
Their goal? Eliminating capital punishment in America.
Why are they Doing
This?
Europeans hate the death penalty. When
surveys demonstrate a values gap between the United States and
the Continent, much of the difference is rooted in attitudes
toward a state's right to take the life of someone within its
borders. A requirement for a country to join the European Union
is the abolition of the death penalty. Similarly, the draft Constitution
for Europe explicitly outlaws capital punishment.
They also find it barbaric that the U.S.
flaunts its use of capital punishment. A few years ago, an American
ambassador to a certain European country remarked that his diplomatic
peers were constantly raising the issue of the death penalty
with him, which the diplomat felt was harming bilateral relations
and making his job much more difficult.
Now, Europeans are doing more than complain-they
are starting to act. More and more European lawyers and human
rights groups are filing amicus briefs in U.S. capital
cases. European heads of state call governors to plead for clemency
for those about to be executed. The EU funds several major anti-death
penalty initiatives in the U.S.
Now, there is this new thing -- these
foreign lawyers are coming to our shores. And they're staying.
And they are litigating. And sometimes they are winning.
The United States
Fails to Uphold Rights of Foreigners on Death Row
The United States loves executing people
so much that we are willing to do it to people who aren't even
citizens of our country. You might not be able to get food stamps
but we can still kill you. Imagine that.
In fact, at the very same time as some
foreigners are coming to the United States to fight the death
penalty, the United States is executing other foreigners --
including some Europeans -- who commit certain serious crimes
while in America.
And America frequently executes some
of these foreigners in breach of its international legal responsibilities.
Then we apologize. Then we do it again. Oops.
Of particular concern are the United
States' repeated violations of its obligations under the Vienna
Convention on Consular Relations. The U.S. has ratified this
international agreement thus putting it on equal legal status
with the Constitution. One of the provisions of the Vienna Convention
guarantees foreign nationals who are arrested in the U.S. the
right to access their consulate in order to arrange legal representation
Numerous cases have been documented in
which foreign nationals were sentenced to death row for their
crimes but were never informed of this right and so were denied
crucial help. Groups such as Amnesty International that track
executions of foreigners in the U.S. show at least 20 foreign
nationals who have been executed during the last decade, nearly
all of whom claimed they were never told of their right to contact
their consulates. Another approximately110 foreign nationals
are currently on Death Row in America.
The International Court of Justice, or
World Court, which is the international community's highest tribunal
for adjudicating disputes between countries, has issued two significant
rulings in the past few years criticizing the United States'
failure to abide by the Vienna Convention.
The first case was brought by Germany,
which alleged that Arizona executed two brothers, Karl and Walter
LaGrand, both German nationals, without telling them of their
right to access the German consulate in Los Angeles after they
were arrested for killing a bank teller. The Court found the
United States in breach and ordered the State Department to devise
a remedy consistent with U.S. law. The Court ruled that the U.S.'s
polite apology was not a sufficient remedy.
More recently, Mexico brought a similar
case on behalf of more than fifty Mexican nationals on Death
Rows in numerous states. The Court recently issued provisional
measures -- similar to an injunction -- in favor of three of
the Plaintiffs with the closest execution dates, while the Court
considers the situation of more than 50 others. A ruling is expected
sometime next year.
Although It May Sound
Strange, the U.S. Needs International Aid
One element of globalization is that
more and more people want to see what is going on in other lands.
They then want to report on those conditions to their countryfolk
with one eye on possibly changing those conditions with which
they do not agree. For example, after the utterly mystifying
presidential elections in 2000, many pundits called for international
elections monitors to visit the United States to review the voting,
similar to what happens in many other countries which go through
considerable political change. The European law students are
like these observers, only they want to make changes in what
they see when they are here.
Everyone knows that the way that defendants
reach the gallows is a tale of woe and shame. One of the major
critiques of the death penalty is that the defendants often have
subpar representation. True stories about lawyers sleeping through
capital trials appear in the press too frequently. Less often
heard is the undertraining, underfunding and understaffing that
pervades the capital defense bar.
Thus, by filling in the gaps in our criminal
defense bar, these students are doing our country a huge favor.
When idealistic young American law student get out of law school,
they are typically in debt up to their eyeballs and can't take
important but low paying jobs such as public defense work. We
should be thankful to these foreigners for helping accused criminals
realize their constitutional rights to counsel and due process.
Make the Students
Work on Foreign Cases!
To deal with all of these problems, the
U.S. should support foreigners who want to do this work instead
of hassling them as is the current practice. In fact, the U.S.
should encourage them to focus their legal efforts on non-national
defendants since that is an area of pressing concern and international
obligation under the Vienna Convention. By allowing the students
to practice in this way, the U.S. is taking a step at carrying
out its obligation in the LaGrand case of preventing people
from being executed when they have not been allowed to exercise
their legal rights.
As for the Ms Maw and her case against
Louisiana? She has commented that if she loses and is prevented
from sitting for the bar exam, she will simply move to Mississippi.
No prohibitions on foreigners practicing law exist there.
And, of course, lawyers defending Death
Row inmates have plenty of work to do.
A federal magistrate judge recent ruled
that the way inmates are treated at the Parchman prison, deep
in the heart of the Mississippi Delta, constitutes cruel and
unusual punishment in violation of he Eighth Amendment.
In essence, the judge ruled that life
on Mississippi's death row is so harsh and disgusting that inmates
are being driven insane as a result of their confinement. A few
of the conditions he noted include extremes of heat and humidity,
a "grossly" unsanitary environment, vermin, arbitrary
and punitive discipline policies, grossly malfunctioning toilets,
and mosquito infestations. An expert in thermoregulation who
volunteers for the organization Doctors of the World said that
the heat in the death row cells was "inhuman".
Given the situation here, don't we need
Ms. Maw and her friends from less bloodthirsty lands to help
us reach real international standards of justice?
Noah Leavitt,
an attorney, has practiced human rights law in numerous international
and domestic settings, including working with German legal team
on the LaGrand case. He can be contacted at nsleavitt@hotmail.com.
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