Citizens of other countries who were sentenced to death in the United States have ben complaining, loud and hard (wouldn't you?), that they were often tried and convicted without access to diplomats from their own countries, as required under the Vienna Conventions.

The World Court - agreed upon as the final arbiter in such cases per the Conventions - ruled against the US, and specifically Texas, last year and ordered that 51 Texas death row inmates receive new hearings because they were denied help from their home countries. The US Supreme Court hears arguments on March 28 from one of them, who has still not been granted a new trial or sentencing hearing.

Earlier this week, the Bush Administration tried to make the decision work by simply telling Texas courts that they had to review all 51 cases in question. Unfortunately, as the administration likely knew, the President (or the executive branch) has no authority to order a state to reverse its position on a criminal defendant, or to order a court to consider something. Or maybe he didn't know, since he's not really good with the "limits on powers" thing:

Bush's nod to international opinion involves a sweeping assertion of executive authority within the United States, in that, without any legislative action by Congress, he is issuing instructions to the courts of a sovereign state as to how to treat defendants. Texas courts, the president says, should review the Mexicans' cases to see if the lack of consular access affected their trials or sentencing.

His approach would also greatly reduce the role of the Supreme Court, which has been asked by attorneys for one of the Mexicans, Jose E. Medellin, to rule that the decision of the World Court is all the authority individual foreigners need to get a new hearing in U.S. state courts.

"It is for the President, not the courts, to determine whether the United States should comply with the decision, and, if so, how," the administration's brief says.

It is unclear whether the Supreme Court, which is protective of its role in interpreting federal treaty obligations, will be willing to go along with Bush's suggestion.

Amazingly, it didn't fly: Bush's home state of Texas continues the enthusiasm for executions that he showed as governor, and refused to give up on the chance of executing 51 people just because the "president" or the "world court" or the "tooth fairy" said they couldn't do it.

That leaves the President with a few options, like commuting all the sentences to life in prison, or ordering the Justice Department to intervene in the courts on federal grounds (like treaty obligations). Those, however, would leave the President on the record as thinking that maybe, just maybe, someone might not be unfairly executed.

He just can't be having that.

The Bush administration has decided to pull out of an international agreement that opponents of the death penalty have used to fight the sentences of foreigners on death row in the United States, officials said yesterday.

In a two-paragraph letter dated March 7, Secretary of State Condoleezza Rice informed U.N. Secretary General Kofi Annan that the United States "hereby withdraws" from the Optional Protocol to the Vienna Convention on Consular Relations. The United States proposed the protocol in 1963 and ratified it -- along with the rest of the Vienna Convention -- in 1969.

The protocol requires signatories to let the International Court of Justice (ICJ) make the final decision when their citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad.

The United States initially backed the measure as a means to protect its citizens abroad. It was also the first country to invoke the protocol before the ICJ, also known as the World Court, successfully suing Iran for the taking of 52 U.S. hostages in Tehran in 1979.

But in recent years, other countries, with the support of U.S. opponents of capital punishment, successfully complained before the World Court that their citizens were sentenced to death by U.S. states without receiving access to diplomats from their home countries.

Note that the letter withdrawing from the same treaty that we proposed, and successfully used, is dated the same day as the ill-fated attempt to get Texas to solve the problem on its own. Was it a smokescreen?

Bush's decision to enforce the ICJ judgment in the case of the Mexicans "should ensure that our withdrawal is not interpreted as an indication that we will not fulfill our international obligations," said Jordan of the State Department.

Meanwhile, the president's decision has thrown the Supreme Court case regarding the Mexicans into limbo. Some legal analysts suggest the case may now be moot.

Attorneys for Jose Ernesto Medellin, a convicted murderer on death row in Texas who is seeking review of his assertion that a lack of consular access harmed his case at trial, have asked the justices to put the case on hold until after Medellin has had his hearing in Texas state court.

The Texas attorney general's office, meanwhile, issued a statement Tuesday saying, "We respectfully believe" that the president's decision "exceeds constitutional bounds for federal authority."

Like they didn't see that coming.

(Via Demagogue.)