Humberto Leal García

Humberto Leal García in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Efforts on the part of Congress and the Executive Branch to satisfy the United States' obligation under Avena have resulted in the recent introduction in the Senate of the Consular Notification Compliance Act (CNCA). The Consular Notification Compliance Act would provide petitioner the procedural remedy that the United States is obligated to provide under international law: review and reconsideration of his Vienna Convention claim. The Consular Notification Compliance Act is currently under active consideration in Congress; the Chairman of the Senate Judiciary Committee has announced his intent to hold a hearing on the bill in July. The Executive Branch participated in the development of the legislation and the Secretary of State and the Attorney General have publicly expressed their strong support for its enactment. That support distinguishes this case from Medellin III, in which this Court held that the possibility of enactment of a previous bill was “too remote” to warrant the issuance of a stay, in the absence of any statement from the Executive Branch about the likelihood of Congressional action. [Medellin v. Texas,] 554 U.S. [759 (2008) (per curiam)] at 759-760; see id. at 760 (“The Department of Justice of the United States is well aware of these proceedings and has not chosen to seek the U.S. intervention.”). While enactment of the Senate bill cannot be assured, in developing and advancing this legislation, the political branches, acting in coordination, have made greater efforts to achieve compliance with Avena than at any previous time.

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Given these circumstances—petitioner's imminent execution date, the breach of United States' legal obligations that will ensue, the significant and detrimental foreign-policy consequences that will follow from such a breach, and the pendency of legislation that would avert those harms—the Court should stay petitioner's execution until the adjournment of the current session of Congress (which must occur no later than January 3, 2012) in order to allow the United States additional time to meet its international-law obligations. The exercise of this Court's discretion to grant such a stay is consistent with the equitable principles that have guided this Court's decisions with respect to stays of execution.

Developments

Ordinarily, for the Court to grant a stay in a capital case, “there must be a reasonable probability that four Members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court's decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed.” Barefoot v. Estelle, 463 U.S. 880, 895 (1983) (citation and internal quotation marks omitted). In this case, those factors must be tailored to the basis for the requested stay, i.e., the introduction of legislation in Congress would, if enacted, afford petitioner the review and reconsideration that the United States has an undisputed international-law obligation to provide. The application of the traditional stay factors in this context must consider whether petitioner would have a right to federal-court review and a stay of execution under the legislation that has been introduced; whether petitioner—and vital national interests—would be irreparably harmed by denial of a stay; whether the grant of the stay would cause significant harm to the State of Texas; and what impact the grant or denial of a stay would have on the public interest. See Nken v. Holder, 129 S. Ct. 1749, 1756 (2009). Those stay factors are addressed to this Court's discretion. Id. at 1760-1761. Here, consideration of those factors justifies the exercise of the Court's discretion to grant a stay.

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1. Congress's enactment of the Consular Notification Compliance Act would provide petitioner with the procedural right to federal-court review of his Vienna Convention claim. The United States has consistently acknowledged that it has a treaty-based obligation to provide that procedural right under Avena. See Gov't Br. at 38, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928) (Medellin I) (“[T]he United States has an international obligation under Article 94 [of the United Nations Charter] to comply with the Avena decision.”); Medellin II, 552 U.S. at 504 (“No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States.”) (emphasis omitted). Under Avena, the United States is required to provide review and reconsideration of the convictions and sentences of the affected Mexican nationals in the decision, including petitioner, because of the United States' failure to provide required information about consular notification and assistance. Medellin II, 552 U.S. at 502-503. Avena requires such review without regard to any state procedural-default rules. Id. at 503.

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In 2005, President Bush acknowledged the international legal obligation created by Avena and determined that the United States would discharge that obligation by “having State courts give effect” to Avena in the cases, including petitioner's, that were addressed in that decision. Medellin II, 552 U.S. at 503. That determination reflected the President's considered judgment that the United States' foreign-policy interests in meeting its international obligations and protecting Americans abroad required the United States to comply with the ICJ's decision. In Medellin II, the United States reaffirmed the important interests implicated by its compliance with Avena, including “(1) the importance of securing reciprocal protection of Americans detained abroad; (2) the need to avoid harming relations with foreign governments, including Mexico; and (3) the interest in reinforcing the United States' commitment to the rule of law.” U.S. Amicus Br. at 11, Medellin II, supra (No. 06-984). This Court agreed that the government's interests in “ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law * * * are plainly compelling.” Medellin II, 552 U.S. at 524. Protecting those compelling interests is a sufficiently important matter to warrant this Court's intervention. See Medellin III, 554 U.S. at 761-762 (Stevens, J., dissenting) (noting that the importance of the interests at stake warranted granting a stay and calling for the views of the Solicitor General); id. at 762 (Souter, J., dissenting) (same); id. at 762-763 (Ginsburg, J., dissenting) (same); id. at 763-766 (Breyer, J., dissenting) (same). 2. The pendency of the Consular Notification Compliance Act in the Senate, with the full support of the Executive Branch, creates a sufficient likelihood of petitioner's receiving judicial review and reconsideration of his Vienna Convention claim to satisfy the first stay consideration, i.e., likelihood of success on the merits. The merits here consist of a procedural opportunity, not a right to a substantive outcome.

a. In Medellin II, this Court observed that “[t]he responsibility” for implementing the United States' international legal obligation to comply with Avena “falls to Congress.” 552 U.S. at 525-526. In the immediate aftermath of Medellin II, a bill to implement the decision was introduced in the House of Representatives, see Avena Case Implementation Act of 2008, H.R. 6481, 110th Cong. (2008), but that bill was introduced without Executive Branch participation or consultation, and it was not enacted. Following that effort, the various interested Departments of the Executive Branch, working with Congress, painstakingly negotiated and developed legislation that would implement Avena, while balancing the interests in preserving the efficiency of criminal proceedings and protecting the integrity of lawful criminal convictions. The resulting bill, the CNCA, was introduced by Senator Leahy on June 14, 2011.

The Executive Branch has strongly endorsed the Consular Notification Compliance Act in a letter to Senator Leahy signed by the Secretary of State and the Attorney General. The letter explains that enactment of the Consular Notification Compliance Act is “essential” to the government's “ability to protect Americans overseas and preserve some of [its] most vital international relationships.” On June 29, 2011, Senator Leahy reiterated the crucial importance of the Consular Notification Compliance Act “to ensuring the protection of Americans traveling overseas” and to restoring the Nation's “image as a country that abides by its promises and the rule of law.” Cong. Rec. S4215-S4216 (June 29, 2011). Noting that “productive discussions with Republicans and Democrats from both the House and Senate” have begun, Senator Leahy, “[a]s [C]hairman of the Senate Judiciary Committee, * * * announc[ed] that [he] intend[s] to hold a hearing on this critical issue in July.” Id. at S4216.

The introduction of the CNCA, with the support of the Executive Branch, represents an important step by the political branches toward fulfilling the United States' international-law obligation to implement the Avena decision. The Consular Notification Compliance Act provides for judicial review and reconsideration, without regard to procedural default rules, of the capital convictions and sentences of foreign nationals, such as petitioner, who did not receive timely consular notification. Consular Notification Compliance Act ¤ 4(a)(1). The Consular Notification Compliance Act also provides that the district court must enter a stay if necessary to allow that review to take place. Consular Notification Compliance Act ¤ 4(a)(2). If and when enacted, the Consular Notification Compliance Act would therefore satisfy the United States' international-law obligation to comply with the Avena judgment for petitioner and other covered individuals. And it would give petitioner an enforceable legal right to judicial review of his Vienna Convention claim.

b. The right that petitioner would vindicate under the Consular Notification Compliance Act is an opportunity for judicial review and reconsideration. Neither Avena nor the Consular Notification Compliance Act would guarantee petitioner a particular outcome. That is because the international-law obligation is one of process, not result. Avena does not require the United States to grant relief for a consular notification violation; it requires only an opportunity for review and reconsideration through an adequate judicial process. Petitioner contends that he is likely to show that the Vienna Convention violation caused him prejudice. A tribunal with jurisdiction to address that claim would evaluate petitioner's submission in light of the “overwhelming” evidence “at both phases of [petitioner's] capital murder trial.” Leal v. Dretke,, 2004 WL 2603736, at *18. Under the CNCA, the court would conduct an evidentiary hearing, if necessary, before determining whether petitioner had shown “actual prejudice.” Consular Notification Compliance Act ¤ 4(a)(3). At this time, however, petitioner's likelihood of success at such a proceeding is not the relevant issue. A stay should instead turn on the likelihood of petitioner's obtaining the procedural opportunity for review.

In Medellin III, the Court stated that a showing of prejudice (there, “that [the defendant's] confession was obtained unlawfully”) would have to be “[t]he beginning premise for any stay.” 554 U.S. at 760. The Court then noted that such a showing of unlawfulness “is highly unlikely as a matter of domestic or international law.” Ibid. But a likelihood that petitioner would actually obtain relief by review and reconsideration should not be required in the present context. A stay is warranted to protect the United States' interest in adhering to the rule of international law in affording petitioner the hearing required by Avena. Execution of petitioner without compliance with Avena would produce a further breach of the United States' international-law obligations and gravely harm the United States' foreign-policy interests. Because the breach of those obligations would result from the United States' failure to provide petitioner review and reconsideration, the stay should turn, not on whether he can show a likelihood of prejudice to his trial or sentence, but on whether a sufficient likelihood exists that additional time would enable petitioner to receive the procedural remedy that Avena requires.

Significantly, petitioner has not yet received the judicial review and reconsideration of his claim that Avena requires. In petitioner's first state habeas proceeding, the court addressed petitioner's Vienna Convention claim relating to his non-custodial statements, but it held that the Vienna Convention was not violated and, accordingly, it did not consider the issue of prejudice. Although the district court considering petitioner's second federal habeas petition opined that “there is no arguable merit to petitioner's claim that he sustained Ôactual prejudice'” as a result of the Vienna Convention violation in his case, Leal v. Quarterman, Civ. No. SA-07-CA-214-RF, 2007 WL 4521519, at *7, it made that statement only after determining that it lacked jurisdiction, id. at *5, and the Fifth Circuit vacated that portion of its opinion, 573 F.3d 214, 224-225 (2009). A determination by a court that lacked jurisdiction does not satisfy Avena.

Review and reconsideration under the provisions of the Consular Notification Compliance Act would satisfy Avena. If petitioner receives that review, the United States will have discharged its obligations under Avena, even if petitioner fails to show actual prejudice. Conversely, if petitioner does not receive judicial review and reconsideration of his Vienna Convention claim, the United States will have violated its obligations, whether or not there was a reasonable possibility that petitioner could have shown prejudice. See Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena & Other Mexican Nationals (Mex. v. U.S.), 2008 I.C.J. 311, ¦ 76 (July 16) (noting acknowledgment by the United States that if petitioner were “executed without the necessary review and reconsideration required under the Avena Judgment, that would constitute a violation of United States obligations under international law”).

c. Because the Consular Notification Compliance Act has not yet been enacted, no currently pending case under the provisions of that bill exists. Nevertheless, the All Writs Act, 28 U.S.C. 1651, authorizes this Court to enter a stay to preserve its potential future jurisdiction. That statute provides in relevant part that “[t]he Supreme Court [and other federal courts] may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. 1651(a). It is well established that the Court's power under the All Writs Act “extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected.” FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (emphasis added); see Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984).

If the Consular Notification Compliance Act is enacted, petitioner can initiate review of his Vienna Convention claims in a federal district court. Consular Notification Compliance Act ¤ 4(a)(1). He would then be statutorily entitled to a stay of execution, if necessary, “to allow the court to review [his] petition.” Consular Notification Compliance Act ¤ 4(a)(2) (“the court shall grant a stay of execution”). Should the decision in that proceeding be unfavorable to him, he will be able to appeal by obtaining a certificate of appealability upon a “substantial showing of actual prejudice to [his] criminal conviction or sentence * * * as a result of a violation of Article 36(1) of the Vienna Convention.” Consular Notification Compliance Act ¤ 4(a)(6)(B). And the decision of the court of appeals—whether based on a consideration of the merits of an appeal or based on the denial of a certificate of appealability—will be subject to review in this Court under 28 U.S.C. 1254(1). See Hohn v. United States, 524 U.S. 236 (1998). The All Writs Act permits this Court to grant a stay to protect that potential future jurisdiction.

d. Because the Consular Notification Compliance Act has not yet been enacted, existing domestic law does not afford petitioner a right to review and reconsideration. But in determining whether a stay applicant has shown a significant possibility of success, the Court may take into account the possibility of a change in the law. See, e.g., San Diegans for Mt. Soledad Nat'l War Mem'l v. Paulson, 548 U.S. 1301, 1303 (2006) (Kennedy, J., in chambers) (granting a stay in part because the case could be affected by a city ordinance whose validity was being litigated in state court). Indeed, the Court routinely does so when the possible change would result from a judicial decision in a pending case. See, e.g., California v. Hamilton, 476 U.S. 1301, 1302-1303 (1986) (Rehnquist, J., in chambers) (granting stay because “[o]ur decision in Rose v. Clark may well affect the outcome of the instant case”). So long as an applicant can show a reasonable possibility of a change in the law that will entitle him to relief, the source of the change is not relevant.

Because of the active and unequivocal support of the Executive Branch for the CNCA, this case is significantly different from Medellin III. In that case, Medellin sought to delay his execution so that either Congress or the Texas Legislature might have the opportunity to enact legislation implementing Avena and requiring domestic courts to provide review and reconsideration of his procedurally defaulted Vienna Convention claim. 554 U.S. at 759. This Court held that the possibility of enactment of legislation, which had “not progressed beyond the bare introduction of a bill,” was “too remote” to warrant issuance of a stay, where “neither the President nor the Governor of the State of Texas has represented to us that there is any likelihood of congressional or state legislative action.” Id. at 759-760. Here, by contrast, the heads of the Departments of State and Justice have communicated to Congress the Executive Branch's full support for the legislation, emphasized its critical importance to United States interests, and urged Congress to enact it. The Executive Branch's active participation in the development of this legislation, and support for its enactment, make the possibility of Congressional action more likely, and therefore less “remote,” than it was in Medellin III.

This case is therefore more akin to those in which the Court has exercised its discretion to stay its mandate in order to provide Congress with a reasonable opportunity to enact legislation in light of a judicial decision. See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88 & n.40 (1982) (ordering a “limited stay” in order to “afford Congress an opportunity” to enact legislation that would “reconstitute the bankruptcy courts” in response to the Court's decision); Buckley v. Valeo, 424 U.S. 1, 142-143 (1976) (per curiam) (entering a stay to afford Congress an opportunity to reconstitute the Federal Election Commission). Those authorities suggest that, in circumstances affecting vital government interests, this Court may exercise its discretion under the All Writs Act to maintain the status quo for a limited period in order to provide an opportunity for Congress to take necessary action.

3. Petitioner's execution would cause irreparable harm to important foreign-relations interests that this Court has described as “plainly compelling.” Medellin II, 552 U.S. at 524. The execution would irremediably violate the United States' international-law obligation to comply with the ICJ's judgment in Avena. It would also violate the United States' specific commitments to the international community that it would work to give effect to that judgment. See Medellin III, 554 U.S. at 762-763 (Ginsburg, J., dissenting) (quoting representation by the United States that it continues to seek to give full effect to the Avena decision); Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena & Other Mexican Nationals (Mex. v. U.S.), 2009 I.C.J. 3, 61 (Jan. 19) (noting “the continuing binding character of the obligations of the United States of America under paragraph 153 (9) of the Avena Judgment” as well as “the undertakings given by the United States of America in these proceedings”). Those violations would cause irreparable harm to the foreign-policy interests of the United States.

Most immediately, petitioner's execution would result in serious damage to United States relations with Mexico. The United States' failure to comply with Avena has generated increasing concern by the Mexican government and thus posed an ever-greater obstacle to United States-Mexican relations. Those relations are enjoying an unprecedented level of cooperation but they are also unusually sensitive, so that a breach resulting from petitioner's execution would be particularly harmful. As explained in a letter to the Secretary of State from the Mexican Ambassador, the United States' “continued non-compliance with the ICJ's decision has already placed great strain on [the] relationship” between the United States and Mexico. Letter from Arturo Sarukhan, Ambassador of Mexico, to Hillary Clinton, Secretary of State (Jun. 14, 2011). “[A] second execution in violation of the ICJ's judgment would seriously jeopardize the ability of the Government of Mexico to continue working collaboratively with the United States” on important law-enforcement initiatives, “including extraditions, mutual judicial assistance, and our efforts to strengthen our common border.” É Petitioner's execution would also harm relations between the United States and other countries and regional and multilateral institutions that “have repeatedly and forcefully called upon the United States to fulfill obligations arising from Avena.” [Letter from Hillary Rodham Clinton, Secretary of State, and Eric H. Holder, Jr., Attorney General, to Senator Patrick J. Leahy (Jun. 28, 2011) (“State/Justice Letter”).* The European Union has sent repeated inquiries to the United States about this issue in general, and petitioner's execution in particular. Other Nations, including the United Kingdom, have sent multiple communications that have raised the issue of Avena compliance at high levels. The European Union, Chile, El Salvador, Honduras, Switzerland, and Uruguay have similarly written the Governor of Texas to urge him to grant petitioner a reprieve to allow time for passage of legislation to implement Avena. Cf. Crosby v. National Foreign Trade Council, 530 U.S. 363, 386 (2000) (noting that “repeated representations by the Executive Branch supported by formal diplomatic protests and concrete disputes” with foreign powers can be sufficient to establish for purposes of preemption that a state's action interferes with the national government's “diplomatic objectives”).

Perhaps most important, petitioner's execution could seriously undermine the ability of the United States Government to protect United States citizens who are detained in foreign countries. As the Attorney General and Secretary of State have explained, “[c]onsular assistance is one of the most important services that the United States provides its citizens abroad.” State/Justice Letter. In Fiscal Year 2010, United States consular officials assisted more than 3500 United States citizens who were arrested abroad and conducted more than 9500 prison visits. Consular assistance has proved essential to affording needed assistance in several sensitive recent cases involving Americans detained in Egypt, Libya, Syria, Iran, and Pakistan, among other countries. Respecting international rules for consular notification is a matter of paramount importance for Americans detained overseas, as foreign nationals detained in the United States usually have a constitutional right to counsel, whereas United States citizens detained in many foreign countries do not. “The United States is best positioned to demand that foreign governments respect consular rights with respect to U.S. citizens abroad when we comply with these same obligations for foreign nationals in the United States.” Ibid. Compliance with those obligations is therefore essential in “ensuring that U.S. citizens detained overseas can receive critical consular assistance.” Ibid. By contrast, failure to comply with Avena will weaken the force of the United States' insistence that other countries respect those rules; an internationally high-profile execution while remedial legislation is pending would greatly exacerbate that problem.

Finally, the interests served by affording Congress an opportunity to implement the United States' international-law obligations and to prevent the significant damage to the United States' foreign relations flowing from any further breach of those obligations outweigh the State's interest in the immediate enforcement of its judgment. In balancing the equitable principles that govern the issuance of a stay of execution, the Court has recognized the “State's strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill v. McDonough, 547 U.S. 573, 584 (2006). But in this instance, the State's own conduct put the United States in breach of its international obligations, and the State had, and continues to have, the power to remedy that breach and to avoid a further violation in this case. And the Court has recognized that the United States' interests in demonstrating that it respects the rule of law internationally, protecting its citizens who live or travel abroad, and preserving cooperation with Mexico and other nations are “plainly compelling.” Medellin II, 552 U.S. at 524. Because the damage to those interests in the absence of a stay would be permanent and irreparable, as compared to the temporary disruption of the State's enforcement of its judgment that a stay would cause, the balance of equities favors a stay until the adjournment of the current session of Congress.

Humberto Leal García in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On July 1, 2011, Mr. Koh sent letters to relevant authorities in Texas—the governor, the attorney general, the district attorney, and the board of pardons and paroles—urging a continuation or modification of the execution date of Humberto Leal García (“Leal”). Leal was one of the Mexican nationals in the Avena case, who did not receive consular notification in compliance with the VCCR. As a remedy for the violation, the ICJ ordered the United States to provide review and reconsideration to his (and 50 other Mexican nationals') sentences and convictions. Mr. Koh's letter to the governor of Texas, which is substantially identical to his letters to the other Texas officials, is set forth below. The letters asked Texas officials to make all available efforts under Texas law to postpone Leal's execution date to afford Congress a reasonable time to enact legislation to comply with U.S. international legal obligations. The letters are available as exhibits to the U.S. amicus brief filed in the U.S. Supreme Court in support of Leal's application for a stay of execution. That brief, with exhibits, is available at (internet link) state.gov/s/l/c8183.htm.

Developments

I write you urgently regarding the case of Humberto Leal García, a Mexican national scheduled to be executed in Texas on July 7, 2011. Specifically, I ask for you to make all available efforts under Texas law to secure a continuance or modification of Mr. Leal's execution date to afford a reasonable time for Congress to enact pending legislation that would avoid an international law violation in this case.

In Case Concerning Avena and Other Mexican Nationals (Mex. v. US.), 2004 I.C.J. 12 (Mar. 31) (Avena), the International Court of Justice (ICJ) found that Mr. Leal had been convicted and sentenced to death without being informed that he could seek the assistance of the Mexican consulate, in violation of the United States' obligations under the Vienna Convention on Consular Relations.

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His execution on July 7 would violate the United States' obligations under the ICJ judgment, which required the United States to provide judicial “review and reconsideration” to determine whether Leal's conviction or sentence was actually prejudiced by the consular violation.

As you know, President Bush sought to secure U.S. compliance with the Avena judgment by directing the state courts to provide the requisite review and reconsideration. In Medellin v. Texas, 552 U.S. 491 (2008), the U.S. Supreme Court found this effort legally insufficient and recognized Avena as imposing a binding international legal obligation, but indicated that Congress could ensure compliance through legislation.

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On June 14, 2011, Senator Patrick Leahy introduced S. 1194, the Consular Notification Compliance Act of 2011 (CNCA) (attached), which, if enacted, will bring the United States into compliance with the U.S. Avena obligations by providing for post-conviction review of Vienna Convention violations for Mr. Leal and other foreign nationals currently on death row. This legislation was developed in close consultation with the Administration, and as the attached letter of June 28 from the Secretary of State and the Attorney General indicates, the Administration strongly supports it. However, enactment of this legislation necessarily will take some time. I therefore respectfully request that you secure a continuance or modification of Leal's execution date at this time to afford a reasonable opportunity for Congress and the President to achieve compliance with the United States' international obligations.

Humberto Leal García in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): This request is not a comment on either the conviction or sentence in this case, or on whether Mr. Leal or any other individual would be able to demonstrate actual prejudice. Rather it is simply a request that Texas authorities help us take the steps that both the Supreme Court and the Texas Court of Criminal Appeals have recognized are necessary to bring the United States into compliance with outstanding international law obligations. As the Supreme Court in Medellin made clear, Texas itself could satisfy the United States' international legal obligations in this matter, by providing Mr. Leal with a hearing that would give appropriate judicial review and reconsideration of his conviction and sentence under circumstances in which the reviewing court had legal authority to award any appropriate relief. Just this week, three judges of the Texas Court of Criminal Appeals recognized the undisputed, binding obligations the Avena judgment creates for the United States and the State of Texas, and called for Texas officials to take action to secure Mr. Leal a stay during the pendency of federal legislation.

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A temporary delay of Mr. Leal's execution date would not prejudice Texas's important and legitimate law enforcement interests, and it would protect compelling long-term interests of both the United States and the State of Texas. Ensuring compliance with the U.S. international consular obligations here at home is essential to ensuring that American citizens from Texas and other states can benefit from U.S. consular assistance if they are detained abroad. Like all Americans, Texans who travel and are detained overseas rely upon precisely the kind of consular notification that was not given here. Mexico has also made clear that Mr. Leal's execution in breach of the U.S. international obligations would seriously jeopardize the ability of the Mexican Government to continue cooperating with the United States on cross-border law enforcement and security and other issues of critical importance to the State of Texas. In the one prior case in which Texas executed a Mexican national subject to the Avena judgment—that of Jose Ernesto Medellin in 2008—Mexico brought a second suit against the United States in the ICJ, which found that the execution constituted another violation. We are concerned that the execution of Mr. Leal, without his receiving the review and reconsideration to which he is entitled under Avena, would simply trigger another round of international litigation damaging to the U.S. foreign policy interests.

Developments

For these reasons, the United States has a compelling interest in ensuring that this case does not result in a breach of U.S. international law obligations. I therefore ask you to make all available efforts under Texas law to secure a continuance or modification of Mr. Leal's execution date to afford a reasonable time for Congress to enact pending legislation, so that we can avoid the significant damage to United States interests that would result from an execution in violation of the U.S. international obligations. Identical copies of this letter are being sent to the Texas Attorney General, the Texas Board of Pardons and Paroles, and the Bexar County District Attorney.

Details

In July 2011, the Obama Administration filed an amicus brief in the Supreme Court of the United States in support of a petition for a stay of execution filed by Mr. Leal. The U.S. brief is excerpted below, with most footnotes and references to the submissions in the case omitted. The full brief is available at (internet link) state.gov/s/l/c8183.htm. The brief argued that Mr. Leal's execution should be stayed in order to comply with international legal obligations under the Vienna Convention and the ruling in the Avena case. The brief also relied on the recent introduction of the Consular Notification Compliance Act in the U.S. Senate (see discussion in section A.2.a, above). On July 7, 2011, the Supreme Court issued its decision denying the stay. Garcia v. Texas, 131 S.Ct. 2866 (2011). Four justices dissented, and their opinion relied heavily on the arguments in the U.S. brief.

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This case implicates United States foreign-policy interests of the highest order. Indeed, this Court has recognized those interests to be “plainly compelling.” Medellin II [Medellin v. Texas, 552 U.S. 491 (2008)], at 524. Petitioner's execution would cause irreparable harm to those interests by placing the United States in irremediable breach of its international-law obligation, imposed by the ICJ's judgment in Avena, to provide judicial review of petitioner's Vienna Convention claim. That breach would have serious repercussions for United States foreign relations, law-enforcement and other cooperation with Mexico, and the ability of American citizens traveling abroad to have the benefits of consular assistance in the event of detention.

Humberto Leal García

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Consular Notification, Access, and Assistance

Under this topic, in the Encyclopedia, find out information on Avena Implementation and Related Issues. Note: there is detailed information and resources, in relation with these topics during the year 2011, covered by the entry, in this law Encyclopedia, about Humberto Leal García

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