Execution of foreign nationals

sassandgroove said:

Since you've made anti U.S. comments before

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What, exactly, are anti-US comments?

btw, in case anyone's interested in what the State Department provides for assistance to our our citizens, here's a guide they put out for students:

http://studentsabroad.state.gov/emergencies/arrestedabroad.php

Well I don't really see how what you said is funny. It's not a joke I didn't get, it's rude.

Also, let it be known that I'm willing to forego everything I've said in this thread if it means we can get rid of Justin Bieber.

now that is a joke!

raburrell said:

Also, let it be known that I'm willing to forego everything I've said in this thread if it means we can get rid of Justin Bieber.

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Ermmm... I think Canada just closed its border.

MOD Note:

AHEM.


That is all.

raburrell said:

I think we both agree the whole thing is a clusterfuck, but I fail to see why the idea of letting someone at a consulate talk to a citizen we've arrested is such a giant threat to world security.

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I don't think it is, at all. In fact, I think--if someone from a foreign country is arrested--it's a good idea, regardless of their status, if they are here legally or illegally.

That said, there is no explicit right in this regard in the treaty being cited here. And this isn't question of how it is being read.

This is an explicit right (rights, actually):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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Each is clear and leaves little room for doubt that they are being codified.

Here's how an explicit right might look in this case:

Any foreign national detained by the police or other agencies of a state shall be allowed to contact a consulate of his or her home state for legal representation.

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There is nothing like this in the 1963 treaty.

And do you realize that by your reading, every single foreign national who was detained for any reason would have the this right? That the Mexican consulate would have to be informed and then would have to provide representation? That means every person stopped by, say, the INS or border agents would have to be held until the consulate sent someone to act as legal counsel.

Plus, not every city has a consulate from every other country. Far from it, actually. Such a reading would put enormous pressure on other nations.

This is all a consequence of this being a capital offense resulting in execution. Legal arguments are being manufactured to serve the moment; they're not being made in good faith, at all.

robeiae said:

And do you realize that by your reading, every single foreign national who was detained for any reason would have the this right? That the Mexican consulate would have to be informed and then would have to provide representation? That means every person stopped by, say, the INS or border agents would have to be held until the consulate sent someone to act as legal counsel.

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Yes. Because this is exactly what we promise our citizens as consular services when they're detained in a foreign country. Because it's what we agreed to in the 1963 treaty.

I get that you're stuck on your interpretation of it, but the idea that these rights are provided by said treaty is widespread and mainstream. I'm happy to linkspam, but if you google 'What do I do if I'm detained abroad', it should give you some idea.

Plus, not every city has a consulate from every other country. Far from it, actually. Such a reading would put enormous pressure on other nations.

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Absolutely. And yet, this is what our State Department puts out as guidance.

This is all a consequence of this being a capital offense resulting in execution. Legal arguments are being manufactured to serve the moment; they're not being made in good faith, at all.

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I'd say that goes for both sides. If indeed, the treaty is in effect, Texas does not have the right to ignore it. (And given a war was fought over that point, I'm sticking firm on that one).

All that said, I sincerely doubt that letting this guy talk to the Mexican consulate would've changed the outcome of this case.

Eta: Ah, there we go.

Under 'key provisions' of the Vienna treaty, article 36:

Article 36. Article 36
Communication and contact with nationals
of the sending State
1.With a view to facilitating the exercise of consular functions relating to nationals of the sending
State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have
access to them. Nationals of the sending State shall have the same freedom with respect to
communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, 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. Any communication
addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded
by the said authorities without delay. The said authorities shall inform the person concerned without
delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison,
custody or detention, to converse and correspond with him and to arrange for his legal representation.
They shall also have the right to visit any national of the sending State who is in prison, custody or
detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from
taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such
action.

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raburrell said:

Eta: Ah, there we go.

Under 'key provisions' of the Vienna treaty, article 36:

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This all built under the idea of a "sending state." It's based on the consulate acting in its capacity as a consulate in having provided its nationals with the necessary documentation to be in the foreign state it services.

How can consulates "be free to communicate with nationals of the sending State and to have access to them" if those nationals are in the nation illegally, did not go through proper channels, at all? It defies common sense, imo.

Ok so did he ask and was denied? or are they saying he wasn't infomed that he even could?

How can consulates "be free to communicate with nationals of the sending State and to have access to them" if those nationals are in the nation illegally, did not go through proper channels, at all? It defies common sense, imo.

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that's been pretty much my question. As per usual Rob said it better.

robeiae said:

This all built under the idea of a "sending state." It's based on the consulate acting in its capacity as a consulate in having provided its nationals with the necessary documentation to be in the foreign state it services.

How can consulates "be free to communicate with nationals of the sending State and to have access to them" if those nationals are in the nation illegally, did not go through proper channels, at all? It defies common sense, imo.

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What was that you were saying about constructing law to suit your arguments? What defies common sense is the argument that we abandon a treaty over someone breaking two laws instead of one.

Joking aside, I think you're too hung up on the notion of 'sending'. The individual in question is still a national, and I see nothing in your arguments (or in the treaty) which removes those rights in the case of what amounts to a paperwork violation.

As far as the whole communication thing goes... detained person asks to contact his or her consulate. Detaining countries says okee dokey, and picks up the phone. Simple enough?

raburrell said:

Yes. Because this is exactly what we promise our citizens as consular services when they're detained in a foreign country. Because it's what we agreed to in the 1963 treaty.

I get that you're stuck on your interpretation of it, but the idea that these rights are provided by said treaty is widespread and mainstream. I'm happy to linkspam, but if you google 'What do I do if I'm detained abroad', it should give you some idea.


Absolutely. And yet, this is what our State Department puts out as guidance.

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Right. This all based on the idea that you have gone through the proper channels, that you are permitted to be in the country you are in.

When you purposefully violate State Department rules--like maybe by entering another country illegally--I do not think the country you are in is obligated to inform the State Department if you get caught murdering someone. It may still do so. And you may ask to talk to a U.S. consulate and be granted your request. And again, I think this is the way we should operate, as well.

And I will acknowledge that Article 36 has a specific right for the individual. But I still don't see how that can be expanded to people who are here illegally, at all. Look at this portion:

Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State.

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Again, I think this clearly presupposes prior knowledge on the part of the consulate, with regard to the existence of its nationals in the state it is in. Look at the purpose, again: "With a view to facilitating the exercise of consular functions relating to nationals of the sending State..."

Consular functions include issuing passports and documentation needed to be legally in another state. Thus, if these rules apply to all nationals, even those that are here illegally, it would oblige the consulate to get in contact with them and straighten this issue out, either by issuing the proper paperwork or sending the individuals home, wouldn't it?

But setting that aside, foreign nationals in a state illegally cannot have absolute freedom of movement. They cannot put off authorities by claiming they are on their way to their consulate. Indeed, pert 2 of Article 36 says the following:

2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

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The purposes of the rights are clear, I think. They're predicated on the consulate being able to track its citizens to know they are safe, to be able to find them when necessary (and for the citizens to be able to do the same). Those purposes go out the window for people in the country illegally, primarily because the consulate doesn't know who they are or where they are. So the individuals have basically--again--detached themselves here. The consulate isn't really there to serve them because they shouldn't be where they are to begin with.

I just don't think this treaty is the controlling document here, with regard to the rights of foreign nationals who have entered a country illegally.

I'll try to come back and reply to that later, Rob, but one additional question for now - can you find anything that supports your contention that a mechanism exists by which this right can be removed?

I don't see it. People end up in countries accidentally all the time. A misread sign in a foreign tongue, lost while hiking in a mountainous border region... Hell, my dingbat sister ended up in china once without a visa (I forget how that happened - something dingbatty). Given those possibilities, I don't see why status would change the rights spelled in article 36.

I would think there would be a difference between an accidental border crossing and willful crossing, or for that matter, accidentally crossing and then staying there.

Seems to me this is one of those things where there's a decent thing to do and a convenient thing to do.

Or maybe it's a "Do unto others..." thing.

robeiae said:

How can consulates "be free to communicate with nationals of the sending State and to have access to them" if those nationals are in the nation illegally, did not go through proper channels, at all? It defies common sense, imo.

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Rob, I'm surprised at you.

This is the law we're talking about, after all.

Mark, you know no insult intended toward practitioners. They only work with they're given.

Williebee said:

I would think there would be a difference between an accidental border crossing and willful crossing, or for that matter, accidentally crossing and then staying there.

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Sure. (Although depending on relations between the countries in question, it might not be seen that way.

What I was asking for though is proof there's anything in the treaty or other laws that limits the right set out in article 36.

Fwiw, I do think the requirement that the detainee must ask is the wiggle room here, but not the status.