The Editor asks International Law Expert Richard Wilson, the following three questions:What are the primary international law concepts for obtaining foreign evidence in an American case?
What are the issues or areas where international law is relevant in American criminal cases?
Isn't referencing or citing international law principles "the kiss of death" for a legal argument in the courts at this time?
Richard J. Wilson is Professor of Law and founding director of the International Human Rights Law Clinic at American University’s Washington College of Law, in Washington, D.C, where he has taught since 1989.
Professor Wilson was a Peace Corps volunteer in the Republic of Panama from 1966-1968, and a 1972 graduate of the University of Illinois College of Law. He began his legal career as a public defender in Illinois, and was director of the Defender Division at the National Legal Aid and Defender Association in Washington from 1980-85. He taught at CUNY Law School in New York City from 1985-1989.Professor Wilson has taught in the law school’s summer Human Rights Academy and in the Oxford International Human Rights Law Program.
He was the director of the law school’s summer study program in Chile in 1995 and 1996, and director of the law school’s clinics from 1999-2003. He has been a Visiting Lecturer in law at Daito Bunka University in Tokyo, Japan, and at the Catholic University in Lima, Peru. He was a Fulbright Scholar in the Republic of Colombia in 1987, and served as Legal Advisor to the Consulate of the Republic of Colombia in Washington during 1998.
Professor Wilson has presented three cases at the Inter-American Court of Human Rights in San Jose, Costa Rica and authored the friend-of-court briefs for the European Union in the United States Supreme Court successfully arguing that international law prohibits capital punishment for juveniles and for persons with mental retardation.
He currently represents one of the detainees at Guantanamo Bay, Cuba in federal court and in military commission proceedings. Also, Professor Wilson was recently named to the Board of Directors of the World Organization for Human Rights, U.S.A.He is a co-editor of textbooks on international human rights law and practice; defense in international criminal law; and international criminal law and procedure.
What are the primary international law concepts for obtaining foreign evidence in an American case?
" There are two primary ways in which international law operates to obtain foreign evidence in an American case. The first is the classic use of the letter rogatory, governed in federal law by 28 U.S.C. § 1781-1782. The second and increasingly more common means is through the use of a Mutual Legal Assistance treaty (MLATs) between the United States and the country from which the evidence is sought. The State Department lists more than 50 such agreements currently, with many more under negotiation, including one that would cover all 25 European Union countries. It is important to note, however, that the MLAT is seen as a tool for law enforcement cooperation and gives rise to few, if any, rights for the defense. See, e.g., United States v. Davis, 767 F.2d 1025 (2d Cir. 1985) (US accused has no standing to assert a violation of the means by which evidence was obtained in Zurich under the US-Switzerland MLAT). There are other treaties that deal with the exchange of evidence, including, for example, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention), which requires under Article 9, that parties to the treaty “afford one another the greatest measure of assistance in connection with criminal proceedings” arising in torture and related prosecutions, “including the supply of all evidence at their disposal necessary for the proceedings.” Similar provisions are found in some terrorism-related treaties and all international criminal tribunal provisions. Finally, one provision of the Federal Rules of Criminal Procedure, Rule 15, came into play recently in United States v. Ali, 528 F.3d 210, 238-243 (4th Cir. 2008). There, although the defendant did not specifically raise a violation of Rule 15, he unsuccessfully argued that his right to confrontation had been violated by the taking of a deposition under Rule 15 in Saudi Arabia, where he alleged that he had been severely tortured during interrogation, with the cooperation of US officials. Such cases are rare, but the court does note that several circuits have permitted the taking of statements by US law enforcement officials abroad without the defendant’s presence.
This leaves the letter rogatory as the primary means by which defense counsel can obtain foreign evidence. The process includes both judicial and diplomatic intervention. The process begins with submission through the court to the State Department, which transmits the request to the appropriate foreign authority. This process is laid out in some detail on a convenient State Department website called “Preparation of Letters Rogatory”, at http://travel.state.gov/law/info/judicial/judicial_683.html. The site notes two important factors: letters rogatory take a long time (“a year of more worldwide”), and they must be translated into the language of the receiving country. Interestingly, the International Court of Justice this month issued its first decision regarding a country’s failure to honor a letter rogatory sought through a bilateral MLAT. The case, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), was decided on 4 June 2008, and is reported at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=93&case=136&code=djf&p3=4. The Court decided it has jurisdiction to hear a dispute in which Djibouti argued that French authorities had failed to honor its request for the files relating to the French investigation into the death of Judge Bernard Borrel, a French national who had been working in Djibouti as a technical advisor to the Ministry of Justice there. The judge’s charred remains had been discovered 80 kilometers from the city of Djibouti, but a local government investigation had concluded that his death was a suicide. Unsatisfied with that conclusion, the French had begun their own investigation, which apparently implicated the sitting president of the country, Mr. Ismael Omar Guelleh, in the death. While the case will proceed on other questions, the court found that France had failed to comply with its international obligations under the bilateral MLAT with Djibouti when it failed to give reasons for its refusal to execute the letter rogatory. "
" There are two primary ways in which international law operates to obtain foreign evidence in an American case. The first is the classic use of the letter rogatory, governed in federal law by 28 U.S.C. § 1781-1782. The second and increasingly more common means is through the use of a Mutual Legal Assistance treaty (MLATs) between the United States and the country from which the evidence is sought. The State Department lists more than 50 such agreements currently, with many more under negotiation, including one that would cover all 25 European Union countries. It is important to note, however, that the MLAT is seen as a tool for law enforcement cooperation and gives rise to few, if any, rights for the defense. See, e.g., United States v. Davis, 767 F.2d 1025 (2d Cir. 1985) (US accused has no standing to assert a violation of the means by which evidence was obtained in Zurich under the US-Switzerland MLAT). There are other treaties that deal with the exchange of evidence, including, for example, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention), which requires under Article 9, that parties to the treaty “afford one another the greatest measure of assistance in connection with criminal proceedings” arising in torture and related prosecutions, “including the supply of all evidence at their disposal necessary for the proceedings.” Similar provisions are found in some terrorism-related treaties and all international criminal tribunal provisions. Finally, one provision of the Federal Rules of Criminal Procedure, Rule 15, came into play recently in United States v. Ali, 528 F.3d 210, 238-243 (4th Cir. 2008). There, although the defendant did not specifically raise a violation of Rule 15, he unsuccessfully argued that his right to confrontation had been violated by the taking of a deposition under Rule 15 in Saudi Arabia, where he alleged that he had been severely tortured during interrogation, with the cooperation of US officials. Such cases are rare, but the court does note that several circuits have permitted the taking of statements by US law enforcement officials abroad without the defendant’s presence.
This leaves the letter rogatory as the primary means by which defense counsel can obtain foreign evidence. The process includes both judicial and diplomatic intervention. The process begins with submission through the court to the State Department, which transmits the request to the appropriate foreign authority. This process is laid out in some detail on a convenient State Department website called “Preparation of Letters Rogatory”, at http://travel.state.gov/law/info/judicial/judicial_683.html. The site notes two important factors: letters rogatory take a long time (“a year of more worldwide”), and they must be translated into the language of the receiving country. Interestingly, the International Court of Justice this month issued its first decision regarding a country’s failure to honor a letter rogatory sought through a bilateral MLAT. The case, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), was decided on 4 June 2008, and is reported at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=93&case=136&code=djf&p3=4. The Court decided it has jurisdiction to hear a dispute in which Djibouti argued that French authorities had failed to honor its request for the files relating to the French investigation into the death of Judge Bernard Borrel, a French national who had been working in Djibouti as a technical advisor to the Ministry of Justice there. The judge’s charred remains had been discovered 80 kilometers from the city of Djibouti, but a local government investigation had concluded that his death was a suicide. Unsatisfied with that conclusion, the French had begun their own investigation, which apparently implicated the sitting president of the country, Mr. Ismael Omar Guelleh, in the death. While the case will proceed on other questions, the court found that France had failed to comply with its international obligations under the bilateral MLAT with Djibouti when it failed to give reasons for its refusal to execute the letter rogatory. "
What are the issues or areas where international law is relevant in American criminal cases?
International law has had a growing role in US criminal proceedings, given the effects of globalization on crime, law enforcement and the networks of cooperation, particularly after 9/11, in worldwide terrorism cases. Aside from the foreign evidence developments mentioned above, there have been major developments, primarily in capital prosecutions for murder but in other cases as well. Criminal practice is also increasingly affected by the intersection of immigration law and criminal law in the representation of foreign citizens charged in the US, giving rise to a small but growing number of practitioners in the field of “crimigration”.
The death penalty has been most profoundly affected by international law developments. International law arguments were influential, if not key, in arguing for the abolition of the death penalty for the mentally retarded and children under the age of 16 at the time of their conviction. I was honored to draft the amicus brief for the European Union and other countries, 48 in all, that successfully argued in the US Supreme Court that the world community had abandoned the use of the death penalty for juveniles, an argument that was accepted by the majority in Roper v. Simmons. The other area of give and take between international courts has been the application of the Vienna Convention on Consular Relations, a treaty which purports to give any foreign national taken into custody by government officials access, on request, to his or her nation’s consulate in the country in question. The US systematically denied such access to many foreign nationals now on death rows throughout the US, and the interplay between the International Court of Justice (ICJ) and US Supreme Court has given rise to ongoing drama in a series of decisions in both courts: Breard (Paraguay), LaGrand (Germany), Sanchez-Llamas (Mexico and Honduras), and most recently, Medellin v. Texas, 128 S.Ct. 1346 (2008). The Medellin case constitutes a serious setback to those who would argue that the Supremacy Clause, Article VI, cl.2 of the US Constitution, means what it says: “Treaties . . . shall be the supreme Law of the Land.” Instead, the conservative majority reads into the clause a requirement that a treaty be found to be self-executing before it operates as law within the US. The decision also concludes that a decision of the ICJ is not directly enforceable federal law, another unfortunate result. On July 16, the ICJ, in a highly unusual move, decided that the US must take “all measures necessary” to ensure that five Mexican nationals whose cases are pending before that tribunal are not executed pending the court’s final judgment. This sets up another confrontation between the ICJ and the US courts, one which, under the Medellin precedent, does not bode well for the defendants, one of whom has an execution date scheduled.
There are limitless ways in which international law can and should be raised in a criminal case. The next section gives some suggestions about how to do that.
Isn’t referencing or citing international law ‘the kiss of death’ for a legal argument in the courts at this time?
Hardly. In fact, I argue to my students that in the not-too-distant future, it may constitute ineffective assistance of counsel to fail to raise an international law argument that is available but not raised. In 2003, for example, the ABA adopted new Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. Guideline 10.6 requires that counsel raise relevant issues under the Vienna Convention on Consular Relations when representing a foreign national in the US courts. While that guideline relates only to the foreign defendant, I have argued elsewhere (31 Hofstra L. Rev. 1195) that counsel should consider a range of international law arguments. After Medellin, however, I would caution that defense lawyers limit their arguments to one source and one method. The source is customary international law, the practice of nations that shows widespread adherence to a norm of international law, such as the prohibition on the use of evidence obtained through coercion or torture, which came into play only today in the Hamdan case being tried before a military commission at Guantanamo Bay. That rule is not uniquely American, but is accepted worldwide, which is one of the reasons the world is so shocked by our treatment of the detainees in Cuba, at Bagram Air Force Base in Afghanistan, and at Abu Ghraib in Iraq. The method is to argue the international law issue as interpretive of US law and not as a binding norm, except in the most serious of violations. This method, which we used so effectively in Roper v. Simmons, argues not that international law prohibits the execution of children but that that body of practice of the world community – the virtual abandonment of the penalty by all but a tiny handful of countries – is evidence of the evolving standards of decency of civilized peoples, a standard long used to interpret the Eighth Amendment to the US Constitution.
In fact, the Eighth Amendment provides one of the most fertile grounds for arguments using international law for interpretive support. Other strong candidates are the provisions on fair trial (Fourth, Fifth and Sixth Amendments) and the provisions regarding equal protection of the law and protection against discrimination in the Fifth and Fourteenth Amendments. The US is party to several treaties dealing with human rights. While Medellin makes it harder to directly apply or enforce those treaties on their face, their widespread ratification is itself evidence that they constitute customary international law as well, and that they certainly may be used as interpretive support for a position that finds only shaky or marginal support in US law alone.
International law has had a growing role in US criminal proceedings, given the effects of globalization on crime, law enforcement and the networks of cooperation, particularly after 9/11, in worldwide terrorism cases. Aside from the foreign evidence developments mentioned above, there have been major developments, primarily in capital prosecutions for murder but in other cases as well. Criminal practice is also increasingly affected by the intersection of immigration law and criminal law in the representation of foreign citizens charged in the US, giving rise to a small but growing number of practitioners in the field of “crimigration”.
The death penalty has been most profoundly affected by international law developments. International law arguments were influential, if not key, in arguing for the abolition of the death penalty for the mentally retarded and children under the age of 16 at the time of their conviction. I was honored to draft the amicus brief for the European Union and other countries, 48 in all, that successfully argued in the US Supreme Court that the world community had abandoned the use of the death penalty for juveniles, an argument that was accepted by the majority in Roper v. Simmons. The other area of give and take between international courts has been the application of the Vienna Convention on Consular Relations, a treaty which purports to give any foreign national taken into custody by government officials access, on request, to his or her nation’s consulate in the country in question. The US systematically denied such access to many foreign nationals now on death rows throughout the US, and the interplay between the International Court of Justice (ICJ) and US Supreme Court has given rise to ongoing drama in a series of decisions in both courts: Breard (Paraguay), LaGrand (Germany), Sanchez-Llamas (Mexico and Honduras), and most recently, Medellin v. Texas, 128 S.Ct. 1346 (2008). The Medellin case constitutes a serious setback to those who would argue that the Supremacy Clause, Article VI, cl.2 of the US Constitution, means what it says: “Treaties . . . shall be the supreme Law of the Land.” Instead, the conservative majority reads into the clause a requirement that a treaty be found to be self-executing before it operates as law within the US. The decision also concludes that a decision of the ICJ is not directly enforceable federal law, another unfortunate result. On July 16, the ICJ, in a highly unusual move, decided that the US must take “all measures necessary” to ensure that five Mexican nationals whose cases are pending before that tribunal are not executed pending the court’s final judgment. This sets up another confrontation between the ICJ and the US courts, one which, under the Medellin precedent, does not bode well for the defendants, one of whom has an execution date scheduled.
There are limitless ways in which international law can and should be raised in a criminal case. The next section gives some suggestions about how to do that.
Isn’t referencing or citing international law ‘the kiss of death’ for a legal argument in the courts at this time?
Hardly. In fact, I argue to my students that in the not-too-distant future, it may constitute ineffective assistance of counsel to fail to raise an international law argument that is available but not raised. In 2003, for example, the ABA adopted new Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. Guideline 10.6 requires that counsel raise relevant issues under the Vienna Convention on Consular Relations when representing a foreign national in the US courts. While that guideline relates only to the foreign defendant, I have argued elsewhere (31 Hofstra L. Rev. 1195) that counsel should consider a range of international law arguments. After Medellin, however, I would caution that defense lawyers limit their arguments to one source and one method. The source is customary international law, the practice of nations that shows widespread adherence to a norm of international law, such as the prohibition on the use of evidence obtained through coercion or torture, which came into play only today in the Hamdan case being tried before a military commission at Guantanamo Bay. That rule is not uniquely American, but is accepted worldwide, which is one of the reasons the world is so shocked by our treatment of the detainees in Cuba, at Bagram Air Force Base in Afghanistan, and at Abu Ghraib in Iraq. The method is to argue the international law issue as interpretive of US law and not as a binding norm, except in the most serious of violations. This method, which we used so effectively in Roper v. Simmons, argues not that international law prohibits the execution of children but that that body of practice of the world community – the virtual abandonment of the penalty by all but a tiny handful of countries – is evidence of the evolving standards of decency of civilized peoples, a standard long used to interpret the Eighth Amendment to the US Constitution.
In fact, the Eighth Amendment provides one of the most fertile grounds for arguments using international law for interpretive support. Other strong candidates are the provisions on fair trial (Fourth, Fifth and Sixth Amendments) and the provisions regarding equal protection of the law and protection against discrimination in the Fifth and Fourteenth Amendments. The US is party to several treaties dealing with human rights. While Medellin makes it harder to directly apply or enforce those treaties on their face, their widespread ratification is itself evidence that they constitute customary international law as well, and that they certainly may be used as interpretive support for a position that finds only shaky or marginal support in US law alone.
