Solicitor General Files Brief Supporting Stay of Execution in VCCR Case

Humberto Leal is scheduled for execution in Texas on July 7th. A Mexican national, Leal was not notified of his right to consular assistance under the Vienna Convention of Consular Relations. In light of the International Court of Justice’s decision in the Avena case (Mexico v. U.S.), Congress is currently working on legislation to bring the U.S. into compliance with its international legal obligations.  But it won’t be able to do so before Leal’s execution date.  And so the Solicitor General has filed a brief before the U.S. Supreme Court supporting Leal’s request for a stay of execution.  The brief is available here in .pdf. Aside from the SG and members of his office, State Department Legal Adviser Harold Koh and the State Department’s Counselor of International Law Sarah Cleveland are also on the brief.

This is a very important case in regards not only to the VCCR, but also the ability of the Executive to manage foreign affairs. We at Opinio Juris will have more on this later, but for now here is the opening of the brief which frames the issues (citations have been omitted and emphasis added):

The Solicitor General, on behalf of the United States, respectfully files this brief as amicus curiae in support of the applications for a stay of execution. The imminent execution of petitioner would place the United States in irreparable breach of its international-law obligation to afford petitioner review and reconsideration of his claim that his conviction and sentence were prejudiced by Texas authorities’ failure to provide consular notification and assistance under the Vienna Convention on Consular Relations. This Court has made clear that Congress has the constitutional authority to provide a federal remedy that would bring the United States into compliance with its international legal obligation. Legislation has been introduced in the United States Senate, with the full support of the Executive Branch, to achieve this objective. The Attorney General and the Secretary of State have submitted a joint letter to the Chairman of the Senate Judiciary Committee attesting to the government’s strong support for the legislation.

Ensuring that the United States complies with its international obligations regarding consular notification and access serves vital national interests. These interests include protecting Americans abroad, fostering cooperation with foreign nations, and demonstrating respect for the international rule of law. The recently introduced Senate bill that would bring the United States into compliance, however, cannot be enacted before petitioner’s scheduled July 7, 2011, execution date. To permit Congress a reasonable period in which to act on the bill, a stay of execution until the adjournment of the current session of Congress (which must occur by January 3, 2012) is therefore warranted. This Court has authority to grant a stay under the All Writs Act, 28 U.S.C. 1651, and doing so would accord with the Court’s traditional standards and serve compelling national interests.