Passport

Texas to Washington: Executing Mexicans Is Our Business, Not Yours

When Texas executed Edgar Arias Tomayo on Thursday, he became the third Mexican national to receive the death penalty in that state since 2008. And if it takes three events to establish a trend, then the trend is set: Every few years, Texas begins the process to execute a Mexican convict on death row. Next, the Mexican government and U.S. State Department object. Then Texas shrugs and goes ahead.

Tomayo and the two previously executed Mexican nationals are not sympathetic characters. Tomayo was convicted of shooting a Houston police officer three times in the back of the head in 1994; José Medellin and Humberto Leal Garcia were both convicted on rape and murder charges. Their guilt is not the State Department and Mexican government's issue with the cases.

Rather, the concern is that Medellin, Leal Garcia, and Tomayo were not notified of their right to legal assistance from the Mexican consulate upon their arrest. That's a violation of Article 36 of the Vienna Convention on Consular Relations, which states that foreign nationals have a right to contact and consult with consular officials from their countries upon their arrest. Not only does the United States have an obligation, by law, to inform arrested foreign nationals of their rights, the State Department argues, but adhering to that law is important to make sure that Americans abroad are afforded the same protections.

The lack of notification is an issue that has long bothered the Mexican government -- so much that in 2003 it filed charges against the United States at the International Court of Justice that named 51 Mexican nationals facing the death penalty in the United States who were allegedly not informed of their right to consular assistance. Medellin, Leal Garcia, and Tomayo were all listed in the Mexican government's filing. The ICJ ruled in the Avena and other Mexican Nationals (Mexico v. Unites States) decision that the United States had in fact violated its treaty obligations and failed to inform arrested Mexican nationals of their rights, and in 2005 President George W. Bush instructed then-newly appointed Attorney General Alberto Gonzales to undertake a review of the cases.

"Some states have dealt with Avena defendants in a manner consistent with both the ICJ's judgment and their own judicial and legal processes," a State Department spokesperson told Foreign Policy. "To date, Texas has been the only state to execute Mexican nationals subject to Avena."

Texas has been defying Washington on the execution of Avena defendants since 2008. The Bush administration and the Mexican government pressured Texas to review all of those cases a second time while the Supreme Court reviewed the legality of Avena executions. The high court eventually ruled that the executive branch didn't have the power to prevent Texas or another state from executing the Mexican nationals named in the ICJ case. In an ironic twist, Bush, a former governor of Texas, found himself pressuring his former colleagues in Austin to change course -- and failing.

The ruling left it up to Texas to help the federal government uphold its international obligations. "One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation," Justice John Paul Stevens wrote in his concurrence. "Texas's duty in this respect is all the greater since it was Texas that -- by failing to provide consular notice in accordance with the Vienna Convention -- ensnared the United States in the current controversy.... When the honor of the Nation is balanced against the modest cost of compliance, Texas would do well to recognize that more is at stake than whether judgments of the ICJ, and the principled admonitions of the President of the United States, trump state procedural rules."

Texas officials immediately made clear that they couldn't care less what Stevens or his colleagues thought. "This ruling doesn't change anything," Allison Castle, a spokesperson for Gov. Rick Perry, told the New York Times. "We really don't care where you are from; you can't do that to our citizens." The state proceeded with the execution of Medellin in 2008, and then in 2011, repeated the same tug-of-war with Washington and the Mexican government when it proceeded to execute Leal Garcia. 

The grim ritual has played out again over the last several months. In September, Secretary of State John Kerry sent a letter to Gov. Perry expressing deep concerns about Tamayo's planned execution. "I want to be clear," he wrote. "I have no reason to doubt the facts of Mr. Tamayo's conviction, and as a former prosecutor, I have no sympathy for anyone who would murder a police officer.... This is a process issue I am raising because it could impact the way American citizens are treated in other countries." A State Department spokesperson told FP that State Department and Justice Department officials also met with the Texas Office of the Attorney General and wrote to the Texas Board of Pardons and Paroles on Tamayo's behalf.

As in 2008 and 2011, the State Department voiced concerns that Texas's eagerness to execute a Mexican national would undermine its international treaty obligations and the safety of Americans abroad. "The United States' compliance with our international obligations under [the ICJ decision] is critical to our ability to ensure consular access and assistance for our own citizens who are arrested or detained by foreign governments," State Department spokesperson Marie Harf said in a statement yesterday.

And once again, Texas proceeded with the execution. "It doesn't matter where you're from.... If you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty," Lucy Nashed, a spokesperson for Gov. Perry, told the Associated Press, echoing the governor's office statement in 2008.

Ramiro Hernandez Llanas, the next Mexican national cited in Avena, is scheduled to be put to death on April 9th.

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National Security

Why Is Edward Snowden on a PR Blitz?

Edward Snowden has a problem: The revelations for which he abandoned his country, his girlfriend, and his career have -- so far, at least -- failed to inspire meaningful congressional or White House efforts to rein in the National Security Agency.

Since stepping into the public light, Snowden has talked a lot about democracy, and on Thursday he emerged once more for an online Q&A to talk politics, surveillance, and, yes, democracy. Snowden has made a point of rarely granting interviews, but Thursday's appearance was the second time the self-proclaimed whistleblower has submitted himself to questioning just this week. In an interview with the New Yorker published Tuesday, he emerged from hiding -- digitally, anyway -- to deny charges leveled at him by the powerful chairman of the House Intelligence Committee, Michigan Republican Mike Rogers, that he has been in bed with the Russian security services. On Thursday, he told his online audience that he may be willing to return to the United States if Congress enacts significant whistleblower reform, that "not all spying is bad," and that the most controversial intelligence practices that he has unveiled had actually been somewhat worthless as counter-terrorism tools.

By Snowden's standards, the two interviews constitute something of a PR blitz, and while it's impossible to know his true motivations for doing so, it appears quite clear that he has come to realize the NSA is winning the battle to retain its powers with the only constituency that really matters: President Barack Obama. In a Jan. 17 speech, Obama unveiled a series of proposed reforms to the intelligence community that amounted to little more than cosmetic changes geared toward addressing public outrage at the Snowden revelations. Meanwhile, rival bills to put new restrictions on the NSA are currently making their way through Congress, but it's not clear if either will pass.

Both the White House and Congress have clear motivation for their go slow approach. Neither would want to be blamed for scaling back intelligence programs if another major terror attack were to occur on American soil. That's the flip side of democratic politics in the post-9/11 era: Fear of terrorism makes it extremely difficult for elected officials to say no to the demands of America's spies.

On Thursday, the first question Snowden agreed to answer was whether "it is possible for our democracy to recover from the damage NSA spying has done to our liberties." Yes, he said: "We can correct the laws, restrain the overreach of agencies, and hold the senior officials responsible for abusive programs to account." Sure, it's a possibility, but will any of those things happen? So far, the answer seems to be no. Obama declined to endorse the more aggressive recommendations of the advisory panel he appointed to review intelligence gathering. And despite the fact that Snowden documents show that James Clapper, the director of national intelligence, quite clearly lied to Congress when he said the NSA doesn't collect data belonging to Americans, he hasn't been fired or otherwise disciplined.

It's not all gloom and doom for Snowden, especially on the legal front. Late last year, federal District Judge Richard Leon ruled that the NSA's bulk collection of Americans' phone record was in all likelihood unconstitutional. A later ruling by District Judge William Pauley went in the opposite direction and concluded that the NSA's methods were a legitimate intelligence tool.

Those rulings may have set the stage for a showdown at the Supreme Court, where it is unclear how the justices will rule. One prominent national security lawyer, Benjamin Wittes of the Brookings Institution, is highly skeptical that the justices will be willing to end a program that the White House has loudly and repeatedly described as essential to national security. As a result, Wittes doubts that the justices will be willing to end the program and potentially bear a degree of alleged responsibility the next time a major terrorist attack occurs in the United States. "When everything's said and done, I can't count five votes on the Supreme Court to bear that kind of responsibility for the next bad thing that might happen," Wittes wrote in December.

Still, with Section 215 of the Patriot Act -- the provision used to authorize bulk collection of telephone records -- set to expire on June 1, 2015, other legal observers doubt that the Supreme Court will even take up the issue. Given that uncertainty, the judiciary is the wildcard in the NSA reform effort. Will they or won't they strike down bulk collection? No one really knows -- and that isn't particularly convenient for Snowden.

Snowden has had some success in changing the conversation about surveillance -- according to the latest Pew poll, 40 percent of Americans approve of government collection of telephone and Internet data and 53 percent disapprove -- but that sense of outrage has not been sufficient to spur official Washington into action.

And so Snowden has emerged to push intelligence reform. On Thursday, the New York Times reported that the Privacy and Civil Liberties Oversight Board, an independent federal privacy watchdog, concluded that the mass collection of phone records has "minimal" benefit in fighting terrorism, a conclusion which was echoed by Obama's own review panel. Snowden latched on to the newly revealed finding to make the case for ending such bulk collection. "There is simply no justification for continuing an unconstitutional policy with a zero percent success rate," he argued.

At the same time, Snowden seems to have realized that he can't engage in an endless public fight with the intelligence community and its many defenders. "Not all spying is bad," he said on Thursday -- a comment that was his most conciliatory public remark to date about the NSA and the U.S. intelligence community.

The U.S. government, however, remains anything but conciliatory. While Snowden said Thursday that his return to the United States would be "the best resolution for the government, the public, and myself," law enforcement officials have shown very little interest in meeting any of Snowden's conditions for returning home, including his demand for an open trial before a jury. On Thursday, Attorney General Eric Holder said that Snowden needed to be "held accountable for his actions," and while he said he would be willing to "engage in conversations" about a plea deal, he made clear that that was an unlikely outcome.

"People have really gotten hung up on the idea of whether he's a whistleblower or something else," Holder said. "From my perspective, he's a defendant. He's a person that we lodged criminal charges against. I think that's the most apt title."

Snowden may have escaped Holder's clutches, but few other things have gone his way. Meaningful intelligence reform has stalled on Capitol Hill and the White House has proposed only minimal changes to the NSA programs Snowden has tried so hard to derail. His increasing public presence is a good barometer of where things stand: the more we hear from him, the worse things are going.

NICHOLAS KAMM/AFP/Getty Images