Rick Perry may be a potential threat to Barack Obama’s 2012 reelection, but for now the administration is making a long-shot play to take advantage of the Texan’s potential national ambitions. At issue: whether states can execute foreigners who have been denied access to their country’s diplomats.
In theory, they can’t. The U.S. Senate ratified in 1969 a treaty called the Vienna Convention on Consular Relations, which requires countries to allow diplomats access to detained foreigners, as when a pinstriped consular official visits a detained American in some Third World dungeon.
George W. Bush abrogated that part of the treaty (the U.S. still abides by other parts, like treating foreign embassies as if they are outside the jurisdiction of U.S. law). When previous attempts were made to force compliance with the treaty, the Supreme Court ruled broadly that states didn’t have to abide by any treaty unless both chambers of Congress explicitly “implement” it.
Now Texas is preparing to execute on July 7 a Mexican national named Humberto Leal Garcia, Jr., who was convicted in 1994 of sexually assaulting and killing a 16-year-old girl, Adrea Sauceda, in San Antonio, but wasn’t given access to Mexican consular officials after his arrest. The administration mustered diplomats from both parties, military officers and former judges to try and convince Perry to stay Leal’s execution out of respect for the treaty and to protect the thousands of Americans detained abroad every year. In response, Perry spokeswoman Lucy Nashed told Reuters that “the governor would have to receive a favorable recommendation from the Board of Pardons and Paroles to consider the clemency requested.”
The Obama administration’s next move was to help draft a bill, introduced this week by Sen. Patrick Leahy, that would partially implement the Vienna convention, requiring a stay of execution in capital cases where the guilty person has been denied consular access. Leal’s lawyers are expected to seek a stay of execution from the U.S. Supreme Court until Leahy’s bill can get an up or down vote. Obama’s new solicitor general, Don Verilli, will have to consider how to weigh in on the subject.
This should all be catnip to Perry. He became a darling of the Tea Party by telling anti-tax activists at the state capitol on April 15, 2009, that Texas might secede if push came to shove with Washington. “We’ve got a great union. There’s absolutely no reason to dissolve it,” Perry said, “But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that.” And he’s been an outspoken advocate of reasserting 10th amendment states’ rights.
But the administration is hoping that now that Perry appears to have national ambitions, he might seek to build credentials as a statesman by striking a procedural compromise that keeps Leal on death row without directly flouting the treaty.
It’s a long-shot play, to say the least. True, independents generally disapproved of Perry’s secession talk. And if he gets in the race, says GOP strategist David Winston, “His challenge will be to translate what he’s done in Texas to what he’ll do for the rest of the country.” Even the conservative Wall Street Journal commentator Daniel Henneberger asked this week, “Is Rick Perry more Texas than the nation can handle?” (His answer, predictably: no).
But the country broadly supports the death penalty; respect for a treaty or a threat to consular access for Americans arrested abroad won’t likely make them oppose it for foreigners who don’t get to talk to their embassies. Unless the administration has a really clever deal up its sleeve, its hard to see how Perry will think he’s better off agreeing with Obama than flouting the treaty and executing Leal.