Lee Myung Kevin Rudd, · Vienna Convention on Consular Relations Article 36(1lCbl [291, 05-502) [IJf he so requests, the competent authorities of the receiving State shall,

.,

International Law Wednesday, September 23, 2009

The US Constitution Abroad

Jon Van Dyke Wm. S. Richardson School of Law

University of Hawai'i at Manoa

Kevin Rudd, Prime

Minister of Australia

9/23/2009

Secretary General Ban Ki-Moon Speaking at the Summit on Climate Change, UN

General Assembly, Sept. 23 , 2009

Nguyen Minh Triet, President of the Socialist Republic of Viet

Nam

Lee MyungBak,

President of the Republic

of Korea

1

University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection

Moritz Leuenberger, Minister of

Environment, Transport, Energy and

Communications, Switzerland

Honduran Troops at the Brazilian E

...;r,jiift;M~5~r

Diplomatic Immunity Are diplomatic premises ~'

"inviolable"? ,

What does that mean? Why? J.'. -Do embassies have to comply with

building codes?

Can the host nation investigate crimes committed on embassy premises?

How do "consuls" differ from " diplomats"?

9/23/2009

Ousted Honduran President Jose Manuel Zelaya, now in the Brazilian

Embassy, Tegucigalpa, Honduras

Ousted Honduran leader ' in danger', Honolulu Advertiser Sept, 23,2009

IISome officials suggested even Brazil's embassy would be no haven for the ousted leader. "The inviolability of a diplomatic mission does not imply the protection of delinquents or fugitives from

justice," said Interim President Roberto

Micheletti's foreign ministry adviser, Mario

Fortinthe/'

Article 22 [05-491)

1, The premises of the mission

shall be inviolable, The agents of

the receiving State may not enter

them, except with the consent of the head the mission.

2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or

2


Manuel

Noriega

US Troops Setting Up Loudspeakers at the

Manuel

Noriega

Nuncio, Panama 1989 "]jpiIII""'1I

9/23/2009

... W' ". .......... " . _.,.. '-- ~""*'IIC> ~f ,UK..I • "'''TWI,?

,."..,

~~-t11O'l<lW". Caribbea n ... . Putmll ....

SeA

~~

S

Paeilic

Medellin v. Texas (2008)

~ [290] • Jose Ernesto Medellin,

Mexican citizen, was " :,.

convicted of raping & killing 2 teenage girls in -Houston. [292] ....,

• Born in Nuevo Laredo, Mexico, 1975, came to Houston when he was nine, ~ 4 ~r

3


Vienna Convention on Consular Relat ions

Article 36(1lCbl [291 , 05-502)

[IJf he so requests, the competent authorities of the receiving State shall, without delav, 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 .... The said authorities shall inform the person

concerned without delay of

his rights under this

sub ara ra h ...

Nationals (Mexico v. U.S. ) (rCJ 2004) [290]

ICJ ruled that 51 Mexicans who had not been told of their right to meet with a Mexican consular official were entitled to review and consideration of their state-court convictions & sentences (even though they had not raised this

issue in a timely

fashion during

state-court

proceedings).

Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the

ment.

9/23/2009

Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol. [291J

[US ratified, but withdrew in 2005 - 292J

Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S. ) (rCJ 2004) [290]

ICJ ruled that Vienna Convention guaranteed individually enforceable rights

& that the US must provide some method whereby Medellin's situation can be

reviewed.

President Bush's Action Feb. 28,2005 [293]

* 'Tnhe United States will discharge its international obligations under the decision of the International Court of Justice in [Avenal by having State courts give effect to the decision in accordance with general principles of comity ... "

4


[290] US Supreme Court ruled that convicted

persons could not assert rights under the Vienna Convention on Consular Relations if their claim did not comply with generally applicable state rules governing habeas corpus challenges to criminal

convictions.

In other words, state

procedural rules prevailed

over international treaty rights.

Following Breard (1998)

* Texas courts ruled that the Vienna Consular Relations Convention created no individually enforceable rights & that Medellin had waived any rights he might have had by not raiSing them at the proper time.

Mede In v. exas He is : 1. The ICJ decision in Avena is lli

not directly enforceable as domestic -: '. law in stale court.

• Although the Vienna Consular Relations Treaty & its Optional Protocol constitute international obligations of the US [294] , no private party has the capacity to invoke them as authority in a US domestic court.

• "while the ICJ's judgment in Avena creates an international law obligation on the part of the United States, it does not of its own force constitute binding federal law that pre-empts state restrictions on the filing of successive habeas petitions." [303]

9/23/2009

Ex Parte Medellin (Tex. Ct. Crim.App. 2006) • ICJ decision was not binding federal

law & thus did not preempt state procedural requirements for consideration of a writ of habeas corpus.

• Memo issued by Pres. Bush violated separation of powers doctrine & thus did not preempt state procedural requirements for consideration of a writ of habeas corpus.

• Neither ICJ decision nor Presidenfs memorandum was binding law & thus neither could serve as a previously unavailable legal basis entitling Mexican national to review ~e' I of his Vienna Convention claim under .t , ,

Medellin v. Texas (2008) ~ Certiorari was granted to answer .. R

two questions: " -)'

1. Is the ICJ judgment in Avena

directly enforceable as domestic law in a state court in the United States?

2. Does President' s Memorandum independently require the states to provide review and reconsideration of the claims of the 51 Mexicans named in Avena without regard to state procedural default rules? [291]

2. The President does not have the authority to instruct state courts to act in a manner consistent with our country's international obligations. [307-08]

5


Medellin v. Texas (2008) [290] "No one disputes that

the Avena decision ... constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts ." [294]

What are the international obligations of the US under the Optional Protocol?

* "The most natural reading of the Optional Protocol is as a bare grant of jurisdiction" [295]

* "Of course. submitting to jurisdiction and agreeing to be bound are two different things." [295]

• "The Protocol says nothing about the effect of an ICJ decision and does not itself commit signatories to comply with an ICJ ,

United Nations Charter -Article 94(1)

"Each member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party."

Chief Justice Roberts : "The Article is not a directive to domestic courts. It does not provide that the United States "shall" or "must" comply with an ICJ decision .. .. " [296]

9/23/2009

Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol. [291J

[US ratified, but withdrew in 2005 - 292J

Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the

Medellin v. Texas (2008) [290]

* "Of course, submitting to

jurisdiction and agreeing to be

bound are two different things."

[295] • "The Protocol says nothing about the

effect of an ICJ decision and does not itself commit signatories to comply with an ICJ judgment." [296]

Whatever happened to : • The Rule of Law?

• The Independent Judiciary? [3221)9]

6


Medell in v. Texas (2008) [290] • President Bush said the

US would follow Avena by

"having State courts give effect

to the [ICJ] decision in accordance with general principles of comity." [293]

Why wouldn't the Supreme Court

support his effort to "undertake

to comply" with the decision of

the International Court of

Justice in Avena?

Robertson) (1884) [284,294] HOLDING :

A statute passed after a

treaty has become ratified can modify or repeal the treaty - latest in time governs .

The Supreme Court thus upheld a statute requiring shipping companies to pay 50 cents for every foreign national brought into the United States (which was said to be inconsistent with a treaty entered into with Russia).

Head Money Cases (Edye v. Robertson) (1 884) (294] "

Justice Miller: But a treaty may also H contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake ofthe nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. [322]

9/23/2009

Head Money Coses (Edye v. Robertson) (1884) [294 J * A treaty is IIprimarily a compact

between independent nalions" • It ordinarily " depends for the

enforcement of its provisions on the interest and the honor of the governments which are parties to it."

• "If these [interests] fail, its iJ infraction becomes the subject of . ,,-international negotiations and reclamations ... .lt is obvious that . with all this the judicial courts have nothing to do and can give no redress. "

Head Maney Cases IEdve v. RaberfSanl 118841 [284, 294, 322]

Just ice M·lIer. A treaty is primarily a compact between independent nations. It depends lor the enforcement of its provisions on the interest and the I1onor of the govemments which are parties to il. II these fail. ill infrac~on becomes the subject of intemational negotiations and reda~tions. so far as the il"ljured party eI\oosu to seek redress. which may in the end be enforced by actual WlIr. lt is obvious that Ylnn III this the judicill courts have fIOthil"lg to do al"ld cal"l give flO redress . Bul. treaty may also col"ltail"l provisions which confer ctrtain righls upon the citizens or subjects of one of the nations residing il"llhe teniloriallimits of the olher. which paflake of the nature of municipal law, and which are capable of enforeement as between private pilrtie! in the coulll 01 the country. An illustration of this character is found il"l treaties. which regul'le the rootual rights of citizens ilnd subjects of the contracting nations in regard to righls of property by dlllceni or inheritance. when the individuals concemed are .Iiens. The constitution of the United Statn plilceS such provisiol"ls as these'l"I the same calego-ry as other laws of congress by iI. dedaflltiol"l that ·this col"Istilutiol"l al"ld the laws made in pursuance thereof, and .11 treilies made Of which shall be made under authority 01 the Ul"lited Stales. shall be the supreme law of Ihe land: A treaty. then. Is a law of the 181"1d as 81"1 act of congress is, v.tlel"lever its provisiol"ls prescribe 8 rule by which Ihe rights of the privale citi zen or subject m~' '" determined. And whel"l such rights are or iI nature to be enforced in a coull

of justice. that coull (eJOrlS 10 the trelty for a rule of decis!ol"l for the ene .. !.. before it as it would 10 a statute. [322) ~

(1884)[284, 294 , 322] Justice Miller: The constitution of the

United States places such provisions as these in the same category as other laws of congress by its declaration that 'this constitution and the laws made in pursuance thereof, and all treati,e, wh ich shall be made under

authority of the United States,

shall be the supreme law of

the land.' [322]

7


Head Money Cases IEdye v. Robertson) (1884) [284.294. 322]

Justice Miller: A treaty, then, is a law of the land as an act of congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of IUS,tlC' ••

that court resorts to the treaty

for a rule of decision for the

case before it as it would to a

statute. [284, 322]

Medellin v. Texas (Z008) [Z90]

Even treaties that are self-executing "generally do not create private rights or provide for a private cause of action in domestic courts." [294 n.17, citing Restatement sec. 907 Comment a].

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Other Mexican Nationals (Mexico v. U.S. (ICJ 2008)

ICJ ruled 7-5 on July 16,2008 that the U S should ensure that those Mexicans on death row who had not been told of their right to meet with a Mexican consular official were not executed until the ICJ rendered further judgment or their

situations were reviewed

pursuant to the 2004

opinion.

9/23/2009

Ii

Consular Relations "self

executing"?

295 ".18: "it is unnecessary fe the Vienna Convention is itself ·self·executing' or whether it grants Medellin individually enforceable rights."

295 ".18: "we .. . assume, without deciding, that Article 36 grants foreign nationals 'a n individually enforceable right to request that their consular officers be notified oftheir detention, and an accompanying right to be informed by authorities of the availability of consular notification. '"

Restatement § 907, Comment a International agreements, even those

directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts, but there are exceptions with respect to both rights and remedies. Whether an international agreement provides a right or requires that a remedy made available to a private person

is a matter of interpretation of the agreement ....

Texas xecutes Mexican Mur erer Jose Medellin, 33, was put to death by

lethal injection on Aug. 6, 2008, after the US Supreme Court rejected a last- I="-~ I minute appeal. jY,""""Tr,",

The Mexican government sent a note of protest to the US State Department, expressing "its concern for the precedent that (the execution) may create for the rights of Mexican nationals who may be detained in that country."

8


On January 19, 2009, the ICJ found unanimously "that the United States of America has breached the obligation incumbent upon it under the Order indicating provisional measures of 16 July 2008, in the case of Mr. Jose Ernesto

"""";0 '0' .. .-I

Senate Ju iciory Committee Sept. 13 2005 Sen. Jon Kyl (R-Arizl: What, if anything, is the

proper role of foreign Jaw in U.S. Supreme Court decisions? ... {\I'J)e're not talking about interpreting treaties or foreign contracts ... , but cases ... that would involve interpretations of the US Constitution.

Judge John Roberts: [nhere are a I!III couple of things that cause concern on my ~ part about the use of foreign law as precedent.

The first has to do with democratic theory .. .. lf we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people apPointed that judge and no Senate accountable to the people confi rmed that judge. And yet he's playing a role in shaping the law that binds the people in this country ..

Con irmation Hearing or Ju ge Samue A ito Senator Jon Kyl (R-Ariz.l: "The reliance

on foreign law is contrary to our constitutional traditions. It undermines democratic selfgovernment, and it's utterly impractical, given the diversity of legal viewpoints worldwide."

Judge Alito: "We have our own law. We have our own traditions. We have our own precedents . And we should look to that in interpreting our Constitution."

9/23/2009

Sources for Guidance?

In his Senate testimony, John Roberts said they should not do so, because judges can find anything they want to find in international sources, and thus it allows them to make

decisions based on their

personal subjective

preferences.

True?

Senate Ju iciary Committee, Sept. 13 2005 Judge John Roberts: The other part ... th at would

concern me is that relying on foreign precedent doesn't confine judges", ,Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Ita ly, it's in the decisions of Somal ia or Japan or Indonesia or wherever, .. .It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent - because they're finding precedent in fore ign law - and use that to determine the meaning of the Constitution.

And J think that 's a misuse of precedent, not a correct use of precedent.

Excoriates the Court for an antidemocratic elitist use of international law designed to upset constitutional norms and impose its own secular values

9


When Are Treaties Self-Executing? * Is a non-self-executing

treaty still the "law of the land"?

Can it be utilized defensively or to illustrate

~::;:;:e;;t of I ,:~.,. -JI international law? , _

Professors Curtis A. Bradley & Jack L Goldsmith III Duke Law School and Harvard Law School [283]

Justice Ginsburg referred to the language from Article 1 (4) of the Racial Discrimination Convention in agreeing that affirmative action programs should come to an end at some point in the future.

Is it appropriate for the

Court to utilize a non-self

governing international

treaty in this fashion?

9/23/2009

When Are Treaties Self-Executina? • Is there a presumption of J self-execution? [275, 282] • Does this apply only to bilateral

treaties, and not mUlti-lateral treaties? • What if the treaty constitutes an

agreement to refrain from doing something? [289 'II 2]

* What about human rights treaties that are designed to restrict governmental abuses?

Racial Discrimination Convention (1966)~ Art. I, para . 4: "Special measures taken~ for the sale purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination 1

provided, however, that such measures do nOl, as consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved." OS-341

10


Internationa Convention on t e imination of All Forms of Racial Discrimination (1966)

Article 2(2): States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of hUman rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance or u'/Ii6IIWIIWI-_ .... 1 separa te rights for different rac ial

groups after the objectives for which they were taken have been achieved. [OS-342]

opinions of other countries relevant?

"It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty .... The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our conclusions." [88J

e onstltutlona Preservation Resolution, R.R. Res. 446, 108th

Congo (2003) "The Supreme Court

should base its decisions on the Constitution and laws of the United States, and not on the law of any foreign country or any international law."

Rep. Jim Ryun R· l(onsos (1996-

2007) Defeated in

2006; !"\Inning again in 2008. [One of t he

great est runners of a ll t ime.]

9/23/2009

Roper v. Simmons

When he was 17, with one younger friend, Christopher Simmons entered the home of a 46-year old sleeping neighbor,

tied her up, wrapped

her face enlirely with

duct tape, and threw her off a railroad bridge spanning the Meramec

River, near Fenton,

Missouri.

Roper v. Simmons (2005) [88 , 332] What do international sources say? .. No other countries uses the

death penalty against juveniles

.. The United Kingdom prohibi ted it in 1930.

.. Many treaties condemn it:

*. Convention on the Rights of the Child, Art. 37 IDS-3731

•• International Covenant on Civil and Political Rights, Article 6(5) [05-86J

•• American Convention on Human Rights, Art. 4(5) [DS-1261

•• African Charter on the Rights and Wel fare of the Child, Article 5(3)

those they believe will nation,"

The Supreme Court was not given the responsibility of changing our nation's foreign policy or making national laws. Article I, Section 8 of the Constitution delegates the authority to make and change laws exclusively to the United States Congress .

"The Supreme Court has been oversteppfng its bounds for far too fong. We must take a strong stance against this wowing tendency ," said Ryun. "It is time for Congress to fulfill Its role as a check and balance to the Judicial Branch:

11


Erie R.R. v. Tompkins (1938)

Holding: "there is no general

federal common law" --

must generally utilize the common applied by the relevant state courts.

Does this ruling apply to international law?

Philip

C.

Jessup

Cook v. United States (1933) [532, 674]

The US & Great Britain had entered into a treaty whereby the US was authorized to exercise jurisdiction over ships within 10 nautical miles of the US coast to prevent smuggling of alcohol.

The United States boarded the Mazel Tov when it was 11 "h miles off of our coast, and found contraband on it.

Can the US court exercise jurisdiction over the culprit?

9/23/2009

Or is international law an inherently federal domain?

If international law is an inherently federal domain, can federal courts utilize customary international law as a source of decision in appropriate cases, or must they wait until the Congress or the President gives approval to a norm of customary

Cook v. United States (1933) [532, 674]


NO!! Because the apprehension violated the treaty & hence the US government lacked the power to seize the vessel.

Justice

Louis

Brandeis

12


Reid v. Covert (1957) [336] A civilian woman , Clarice Covert, was

accused of killing her husband, a U.S. Air Force Sergeant, while they were living together at a U.S. military base in the United Kingdom.

She was tried and convicted by a court martial.

She argues that sh was entitled to a jury ~:;"'..;..'£'~~ll trial.

An executive agreement established the procedure used to prosecute Ms. Covert.

Is an executive agreement of a treaty?

If a treaty or executive agreement conflicts with the US Constitution, which governs?

What if they conflict with the Tenth Amendment??

How does Justice Harlan's opinion differ from Justice Black's?

Types of Executive Agreements • Sale Presidential Agreements

~ •• To recognize governments & ~ establish embassies

•• Commander-in-Chief powers

•• Armistice agreements

• Congressional-Executive Agreements (Congress authorizes the President to negotiate an agreement)

• Treaty-Executive Agreements

9/23/2009

Reid v. Covert (1957) [336] Are US officials obliged to

adhere to the US Constitution when they operate outside the United

States? ~". ' .. "".,' .. • Always? "";Ii<":t'~ .....

: ~~~ye:hen they deal " ,: "

with U.S. citizens?

* Only with regard to "fundamental " constitutional ri hts?

Executive Agreements * Pursuant to a treaty

* Pursuant to a statute * Pursuant to the President's

constitutional powers * Pursuant to implicit

Congressional 1F"'~~""'fi'""i1

authorization or acquiescence (??)

If an Executive Agreement Is

. In

Conflict with the Constitution, Which Governs?

n, (. .. ""·" ,,

;~~:~7 ·~i. -

" .

13


Reid v. Covert (1957) [33 ] Justice Black: "[W]e reject the idea that

when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution ." [337]

True?

How many votes support

that position?

A civilian dependant American wife was accused of killing her US military husband on a US base in the United Kingdom.

Can she be tried by a military court-martial?

Is she entitled to trial by jury?

Where should she be tried?

See Justice Harlan's note 12

(omitted):

1. In the United States.

2. In a US court established in the UK.

3. In a court of the United

Justice Harlan (footnote 12): What are these alternatives? .... (2) Civilian trial overseas by the United States also presents considerable difficulties. If juries are

required, the problem of

jury recruitment would

be difficult.

9/23/2009

Reid v. Covert (1957) [336]

Justice Harlan: Constitutional rights should be given by the United States government to U.S. citizens abroad unless it would be "impractical and anomalous" to do so. [340]

Where should Ms. Covert's jury trial be held?

Justice Harlan (footnote 12): What are these alternatives? (1) One is to try all offenses committed by civilian dependents abroad in the United States. But the practical problems in the of such a choke are obvious and overwhelming. To require the transportation home for tria l of every petty black marketeer or violator of security regu lations would be a ridi culous burden on the Government, quite aside from the

problems of persuading foreign

witnesses to make the trip and of

preserving evidence ....

Justice Harlan (footnote 12): ... . (3) The alternative of trial in fore ign courts, in at least some instances, is no more pala table. Quite aside from the fact that in some countries where we station troops the protections granted to criminal defendants compare unfavorably with our own minimum standards, the fact would remain that many of the crimes involved-particularly breaches of security-are not offenses under foreign law at all , and thus would go completely unpunished. Add to this the undesirability of foreign police carrying out investigations in our military installations abroad, and it seems to me clear that this alternative does not commend itself.

14


How does Justice Black deal with the language in Missouri v. Holland?

"There is nothing in Missouri v. Holland which is contrary to the position taken here. There the Court carefully noted that the treaty invotved was not inconsistent with any specific provision of the Constitution .... To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier." [339]

Occupation of Berlin

Berlin Wall

9/23/2009

Construction of the Berlin Wall, A 1961

""""" ....... .....,,4.,

Berlin Wall

15


United States v. Tiede (US Ct Berlin 1979) [341]

On Aug. 30, 1978 Hans Detlef Tiede boarded flight LOT 165 in the Polish city Gdansk & used a toy pistol to divert the East Berlin-bound jet to the US sector on the other side of the Wall, at the US military air base Tempelhof. Nine other East Germans defected to Allied-occupied West Berlin,

'",'"""' To.,.', I!.' ;~ accomplice Ingrid Ruske _

& her young daughter. :P: . -

Judge Herbert Stern tried the case in Berlin's Tempelhof airport

9/23/2009


Tiede and Ruske could not walk free, since the act of hijacking a civilian airliner violated international conventions long negotiated between NATO & the Warsaw Pact. For the first and only time, a US court of justice was convened in Berlin to prosecute the case. Herbert J . Stern, the American judge who tried the used a makeshift courthouse in the

departure lounge of

Tempelhof airport.

Herbert]. Stern '58

By age 36, Stern, a US Attorney,

prosecuted 8 mayors, 2 secretaries of state, 2 state treasurers, 2 powerful political bosses, a us congressman and 64 other public officials.

• Conducted the Grand Jury investigation into

the death of Malcolm X.

• Served as special counsel for the Iran-Contra

indictments against former Lt. Col. Oliver North.

1979) [341] Does the US Constitution apply to the

"United States Court for Berlin"?

US Prosecutor argued that the court was governed by "the requirements of [US] foreign policy" [341], that it was "not an independent tribunal," and that it lacked lithe power to make a

ruling contrary to the

foreign policy interests

of the United States."

16


Ex Parte Mi igan (1866) [169] "No doctrine, involving more

pernicious conseguences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads to anarchy or despotism ... " [344]


Is Tiede (an East German citizen) entitled to a jury trial for allegedly hijacking a plane?

Yes!!

Under the Tokyo Convention aliens are entitled to the same treatment as citizens.

Who was on the jury?

West Berliners.

w~w~~ ,-&f/,tit~ ":

Tit!! Fourth Amendmenl - l -Ttl. ri;1Il f1fJlt~ PNPU 10 Iu. UCIIU In Iltdr p*UI'~ ""IUa, fMl'N$rllHlJ I!ff«l$, qaJlUllUV'CllJlf1tr1lbll. UfUdr.er lUI" SG:Ji,rQ, JJrtUl nllt lH: ";tlU:1M, IVIItnf1

"VToutU Ih"U illu" but Ujlfm problJbll! auue,: ~PP'"W' bI IHUJ. or qfJ/Tlrlalilm, and pllNlr.uWly Uscnt!lttz t" ~ pl4u tfl/U uQrdr..:d. IV,II l ilt pfnlJlU-lJr _

Ihlng~~"burlt", · : .... 1...-

9/23/2009

U.,,,, "~,, • T"', (U; " H Berlin 1979) [341] •

'" "It is a first principle of American

life - not only life at home but life

abroad - that everything American public officials do is governed by, measured against, and must be authorized by the united States Constitution." [345]

'" "As the Supreme Court made clear in Ex parte Milligan, the Constitution is a living document to be applied under changing circumstances, in changing conditions and even in different laces." 345

r-:-:-::----:..,......-;----..,........,..,==-=_==_______>~ US v. Verdugo -Urquidez (1990) [349]

us agents seized evidence from the home of a Mexican citizen in Mexico, without a judicial warrant.

Can the evidence be used in a US court, or should it be suppressed under the Exclusionary Rule?

Does the Fourth Amendment govern actions of US agents outside the United

What if the evidence had a States? •• "'0 .

been seized from a US citizen? _ I2t

17


us Embassy, Nairobi, Kenya, August 7,1998

Judge Jose A. Cabranes,

Second Circuit

Wadih EI-Hage,

US Citizen

9/23/2009

Osama

Bin

Laden

In Re East Asian Embassies Terrorist Bombings (2d Cir . 2008) [351]

• Search of the home of a US citizen in Nairobi, Kenya, with a Kenyan search warrant.

• Wiretapping of phone calls for a oneyear period.

• Is the evidence obtained from these searches admissible, under

the Fourth Amendment?

In Re East Asian Embassies Terrorist Bombings (2d Cir. 2008) [351]

HOLDING: Fourth Amendment applies to the activities of the US agents, but it does not require a warrant in this context, because what magistrate would issue a warrant?

Search was "reasonable" because of the complexity and importance

of the investigation.

Good ruling?

18


Territories?

Entirely?

Partly?

Did the U.S. Constitution Apply to the Activities of the United States in the Trust Territory of the Pacific prior to the Compacts of Free Association?

PACIFIC rSLWDS

".).",,,, 1I'1-"'} lII"Iq,:..rJ '/~1t ... ,1Q. \''1'''''

..aary,(lf\\

.to ...... ,;IjU ~)

~ ...... ~,

I'I ..... :U'A .. .. '.1.101'0'''. 1 ' ... L ... " 1I.MUII1 'j1''J .... a/\

l<4>nl.

rsr~~:ufv.

. ..... -"" ... J f .. l"". lrr"'..;." ~TI't.~ .. o..· •. lu;~ ~ ~",.,Ij:;"" ~.~~ lll";) oj 11~. 1101 .", Z .. IOllCll ~ ~h.,.,n Ii (!) ... )

ownes v. I we upreme our Does the U.S. Constitution apply to the newly

acquired insular territories? Court distinguished between "certain natural

rightsll that do apply, and ~arlificial or remedial rights, which are peculiar to our own system of jurisprudence,n which do not. ~:'

Those that apply in the territories: 1I ~: l l .. Rights to religious freedom ,Ut; '" • Right to personal liberty & property " .. Freedom of speech & of the press .. Free access to courts .. Due process of law .. Equal protection • Immunities from unreasonable searches &

seizures • Immunity from cruel & unusual punishment

9/23/2009

Does t e US Constitution Apply in the Five US Territories and Commonwealths?

Commonwealths Commonwealth of the Northern

Mariana Islands Commonwealth of Puerto Rico Territories American Samoa Guam U"S" Virgin Islands

~ v

Caflt)bean Sea

Caribbean Basin

~ ~r> ... _.-o..~

• :l:'" ~.--

\'eiJUUUIII -: '::ff .c l 0ll7 WAGEtlAN GIItlfIQ~ "l. ...

" (006)6Sl'i-31()() .... v,wmtpttom .&i.f'_

e Jury System A jury usually consists of

12 members, selected to represent a cross-section of the community

Usually requires a unanimous verdict Designed to determine the facts of a

dispute Designed to bring in the common sense

views of the community, rather than the professionally-trained but perhaps more rigid views of a trained judge, and to temper the law when appropriate"

19


ou ria y ury e lewe as a "fundamental,rConstltutlonal Right?

Justice Black in Reid: "Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness." [338]

Hawaii v. Mankichi. 190 U.S. 197 (1903)

Do the constitutional provisions on indictment by grand jG and trial by jury apply to the 4 0 -_ ... -Territory of Hawai'i? ~~-

No. The Court -{:> affirmed a manslaughter conviction of a defendant who was convicted by a 9-3 jury vote (in accordance with the law of the Republic of Hawai'i) .

I ""J!!! 'HI Iill 1W'101I 'Il ""M o 1I00I AUf.I\:ItA ~ 1- - ~ P"'~O~O._ •

wu ..... .

soum PICIfK;

OCl£N)

., ......

9/23/2009

Should Trial by Jury Be

Viewed as a "Fundamental "

Constitutional Right?

No:

Territory of Hawaii v. Mankichi, (US Supreme Ct 1902) (affirming conviction. even though there had been no grand jury indictment and the verdict was not unanimous - 9-3 vote)

Commonwealth of the Northern Mariana Islands v. Atalig (9th Cir. 1984) (upholding conviction without jury trial . out of respect for the traditions and culture of the insular community).

The Jury System In the 50 States - jury trial is available

to a defendant in all criminal cases where the potential punishment is 6 months imprisonment or more.

In the Commonwealth of the Northern Mariana Islands - jury trial is available to a defendant in all criminal cases where the potential

punishment is 5 years

imprisonment or more.

Instructed the District Court to

determine whether the jury system

was "practicable" in light of "the Samoan mores and mata; culture with its strict societal distinctions. /I

The district judge received testimony from eight Samoans, four U.S. government officials, and Margaret Mead. None said the jury system should be implemented immediately, but the judge ruled that - in light of the educational advancements in American Samoa - it should be implemented.

Juries are now available in American Samoa, and appear to be functioning without difficulty.

20


aetory wner onvlete In oree Labor Case

Kil 500 Lee, owner of the Daewoosa garment factory in American Samoa, was convicted on Feb. 21, 2003 in the US District Court in Hawaii , of -involuntary servitude, extortion and money laundering, for his role in holding over 200 Vietnamese al'-n",d"'-::-----,I Chinese garment workers in forced servitude & was sentenced to 40 years in prison.

F ALEOMAV AEGA REQUESTS HEARING ON FEDERAL DISTRICT COURT FOR AMERICAN SAMOA (2-10-06)

Congressman Faleomavaega has introduced a bill to

provide a federal

district court

for American Samoa.

o 1!Xl 2(JO ..... .- -.. -~ .-~ .--.

(I 1110 l'OO~

Maug Islands

Commonwealth

of the

Northern

Mariana

I s lands

t)/l:J.PPIflC' Agrihan

See

PaglJlI lW;rtn PdCi/,C

GugUDn 0...."D8'1 Sarigsll

RoW

9/23/2009

TERRITORIAL SENATOR FOR AMERICAN SAMOA INDICTED FOR PUBLIC CORRUPTION CHARGES (9-10-07)

WASHINGTON Lieutenant Governor Aitofele T.F. Sunia and Territorial Senator Tini Lam Vuen, of American Samoa, have been arrested on fraud, bribery, and obstruction charges.

The defendants allegedly engaged in a scheme to avoid the competil ive bidding

"'~," ='."'0 ""m • '''0' 'I furniture construction for the American (: Samoa school system among . companies owned and operated by the defendants.

Wabo v. Vi lacrusis (9 t n Cir . 1990) ...... .

Can the CNMI restrict land ~ . d(:4" ownership and long-term leases .,,/ _ :q~:; to IIpersons of Northern Marianas '~7r_:..: / descent"? ~ ~'":..4~ .

-~~~ j Ninth Circuit ruled that th is _ ',' .:.:- i

provision in the 1975 Covenant was constitutional:

•• - .... !"_'::!!.-

liThe Bill of Rights was not intended to interfere with the performance of our international obligations. Nor was it intended to operate as a genocide pact fo r diverse native cu ltures ... .Its bold purpose was to protect minority, rights not to enforce homogeneity. "

a e In t e oun atlon v. nlte States , 242 f .3d 1300 (11th Cir. 2001)

• Supreme Court has never said what a "treaty" is , as opposed to an "alliance," or a "confederation," or a "compact," or "agreement."

• The question of whether NAFTA is a treaty is a nonjusticiable politica l queslion, because answering the question would show disrespect to the coordinate branches, because such a decision could have an adverse impact on Ihe country's foreign and economic relations , because no judicially manageable standards exist, and because the Constitution does give Congress the power to regulate commerce with foreign nations .

21


PHILIi'M/( ."

. ...., .

~;~~ . , ...... ;4 ..

":';'j ''- ... -, ,

E'lI'.'JETOK ... lOLl .,. ... "

-"'y' ..... ',yf

~~~~~I Vaporized Islands I'l:l in Northern

Enewetak

9/23/2009

Did the U.S. Constitution Apply to Activities Undertaken by the US Government in the Trust Territory of the Pacific in the 1950s?

Hydrogen Bomb Tests , Enewetak, 1950s

Runit Island,

Enewetak, "Trash Can

of the Pacific"

22


Is It Legitimate for One Nation to Go Into the Territory of Another Nation to Abduct an Individual?

Under international law?

Under U.S. law?

Always?

Sometimes?

Never?

Eichmann's Papers in Argentina

,~ ~ .. --

Eichmann's Argent ine Passpon

Was the Abduction of Eichmann Lawful?

On Aug. 3. 1960, Israel & Argentina issued a jOint statement that "the Governments of Israel and the Republic of the Argentine, imbued with the wish to give effect to the resolution of the Security Council of June 23, 1960, in which the hope was expressed that the traditionally friendly relations between the two countries will be advanced, have decided to regard as closed the incident that arose out of the action taken by Israel nationals which infringed fundamental rights of the State of Argentina,"

- .', _,; 1.,

-::-~~ i~'

-¥::' ! ~' ~-2r

• I - \l ?,~:>'

'~: .~>;::,

• -:'j~=,,-

~= . .-:: , -::..

9/23/2009

Adolf Eichmann [119, 674]

Was the Abduction of Eichmonn Lawful? [119 674 J In June 1960, Argentina requested an urgent

meeting of the Security Council , to protest the "violation of the sovereign rights of the Argentine Republic." [674J

The Council passed a resolution that requested Israel "to make appropriate repa ration," while also stating that "Eichmann should be brought to appropriate justice for the crimes of which he is accused" and that "this resolution should

in no way be interpreted

as condoning the odious

crimes of which Eichmann

is accused."

United States v. Toscanino (2d Cir. 1974) [670)

Francisco Toscanino, an Italian citizen, was convicted in the Eastern District of New York of conspiring to import narcotics into the United States from South America.

Is it proper for the United States to exercise jurisdiction over this type of crime?

Even if Toscanino never sets

foot in the United States and

never commits any overt act in

the United States?

23


United States v. Toscanino (2d Cir. 1974) [670]

Toscanino charged that US agents:

* kidnapped him in Uruguay,

* bribed an employee of the telephone company in Uruguay to conduct electronic surveillance of him,

* tortured him in Brazil

for three weeks,

* and then abducted him

to the United States.

United States v. Toscanino (2d Cir. 1974) [670]

What is the holding of this case?

Does it overrule or undercut Ker and Frisbie? [672-73]

When are US courts barred from aI/owing a prosecution to go forward?

How outrageous must the "..,.. . .,. . .... ""'-".... .. - .. :. ~~~.£\~-governmental conduct be? _ '~l,-. _ .. )

[see 673-75] • '~-:-~ .J " ~.

Has Toscanino been "" i (;;.,.!

overruled by Alvarez-Machain ~_ ~' .. "" ~= : (1992) [593]? -::-:: . _. .

United States v. Toscanino (2d Cir . 1974) [670]

UN Charter, Article 2(4): "All Members" must "refrain ... from the threat or use offorce against the territorial integrity

or political jff." 1~,;;it~ 1 independence .~ Ir ~ No

~h , " / . I ~ of any state .... " ~\\ x .,'M [674, 05-6] ~ -- ~ .... ~

---?"~

9/23/2009

Do US Courts Have Juris iction Over Persons Arrested Illegally?

Does it matter whether the illegal arrest occurred in the United States or abroad?

Ker v. Illinois (1886) - Ker was forcibly abducted from Peru (by a private bounty hunter, without US government involvement). US & Peru had an extradition treaty (but Peru did not object to the abduction). [671]

Frisbie v. Collins (1952) -illegally arrested from Illinois & taken to Michigan. [671]

United States v. Tosconino (2d Cir. 1974) [670]

How outrageous must the governmental conduct be? [see 673-75]

"Deliberate misconduct on the part of United States agents" [673]

"in violation of international treaties of the United States." .' '.c'~.i-':" '

[673] .. "/';.c ..:,) , , -:, __ r

OAS Charter, Article 17:

The "territory of a state is inviolable; it may not be the object, even temporarily, ... of...measures of force taken by

another state, directly or indir"".t ...

on any grounds whatever ... " [674]

24


;

Cook Y. United States (1933) [532, 674]


NO!! Because the apprehension violated the treaty & hence the US governrnent lacked the power to seize the vessel.

Justice Louis Brandeis

Kear v. Hilton (4th Cir. 1983) [676] Was there an extradition treaty

with Canada?

Yes.

Could it have

been utilized to

secure Jaffe's

return?

Yes .

9/23/2009

Cook Y. United States (1933) [532 , 674] The US & Great Brita in had entered into a

treaty whereby the US was authorized to exercise jurisdiction over ships within 10 nautical miles of the US coast to prevent smuggling of alcohol.

The United States boarded the Mazel Tov when it was 11 11, miles off of our coast, and

found contraband on it. ~

Can the US court exercise I cQItRIII\~!S jurisdiction over the culprit? .. J

Kear Y. Hilton (4th Cir. 1983) [676] Daniel J. Kear, a professional bail

bondsman, went to Toronto, Canada to capture Sidney L. Jaffe, who had fled from Florida after being charged with improper land sales, and had become a Canadian citizen . No extradition efforts were made.

He argued that this would not have been a crime in the US if committed by a

Canadian bail bondsman. ~"-h The court rejected that . ~

. II argument. He was extradited &

ntenced to 21 months in rison .

25


Documents

Lee Myung Kevin Rudd, · Vienna Convention on Consular Relations Article 36(1lCbl [291, 05-502) [IJf he so requests, the competent authorities of the receiving State shall,