Treaties shouldn't trump U.S. law

POLICE OFFICERS across the country may soon have to add a new question to the list of constitutionally required Miranda rights. In addition to the right to remain silent and the right to an attorney, officers soon may be required to ask every arrestee whether he is a foreign national who wishes to contact his consular officials. If the officers fail to ask this question, any defendant who is a foreign national may then have a right to suppress evidence against him or to seek a new trial.

The sole basis for creating this sweeping new right for millions of criminal defendants is a single provision in the Vienna Convention on Consular Relations, a treaty ratified by the United States in 1969. In two upcoming cases, Sanchez-Llamas vs. Oregon and Bustillo vs. Virginia, the Supreme Court is being asked to adopt a treaty interpretation that has been rejected by every U.S. administration, the lower appellate courts and every foreign court that has interpreted the treaty, as well as the high court's own prior decisions.

Such an aggressive interpretation would threaten the constitutionally protected right of the states to manage their own criminal justice systems. It also would give anti-internationalists in the Senate a powerful argument against joining new international human rights treaties, rightly claiming that activist judges could adopt radical interpretations far beyond the text or intentions of the treaty makers.

Moises Sanchez-Llamas, who is from Mexico, and Mario Bustillo, from Honduras, were convicted of attempted murder and murder, respectively. Both Sanchez-Llamas and Bustillo admit that they received the full panoply of rights guaranteed by the U.S. Constitution, including their Miranda rights to remain silent and to contact a lawyer. They nonetheless argue that the failure of police to notify them of their consular treaty rights entitles them to a new trial or the suppression of evidence against them.

While a number of leading attorneys, legal scholars and former diplomats have filed briefs in support of Sanchez-Llamas and Bustillo, there are serious flaws in their interpretation of the treaty. First, because treaties typically involve relations between governments, there is a standard presumption against finding an individual right in a treaty unless that right is explicitly spelled out. The Vienna Convention speaks of the rights of consular officers to be notified of the arrest, rather than a right of the foreign national who is being arrested.