Where Gonzales' analysis of the Geneva Conventions set out to rationalize torture of al-Qaida and Taliban prisoners, the president's top attorney had similarly pragmatic considerations in mind back when it came to dodging the Vienna Convention. Gonzales favored ignoring the latter because he knew that Texas police had probably violated the treaty's reporting requirement in hundreds if not thousands of arrests, and that any concession to international law in the Tristan matter might have unforeseen consequences for other cases. This proved rather prophetic.
Two years later, U.S. Secretary of State Madeleine Albright weighed in on the Vienna Convention as Texas prepared to execute a Canadian national, Joseph Stanley Faulder. In a letter to the Texas Board of Pardons and Paroles, Albright wrote: "I am deeply troubled by the failure of consular notification in this case. Texas has conceded that the [Vienna Convention's] requirement of consular notification was violated. … It is clear that, but for these failures, Canadian consular officials would have visited Mr. Faulder in prison and offered him assistance … when such assistance would have been critical."
There were other problems with the Faulder conviction, among them that the state had paid its chief witness more than $10,000 and that Faulder's prosecutor was literally paid for by the victim's family—a judicial innovation apparently unique to Texas. In an "execution summary" he prepared for Bush, Gonzales acknowledged the violation of the Vienna Convention, but concluded that it was "harmless error." Faulder was executed on June 17, 1999.
For his part Bush suggested at the time that the main message of the Faulder case was, "People can't just come in our state and cold-blood murder somebody." Unmoved by the violation of international law, Bush simply chose to disregard it and get on with the execution. During his tenure as governor, Bush signed off on 152 executions. He commuted only one death sentence to life when it became clear that the condemned man could not have committed the murder for which the state was preparing to execute him.
In March of this year, the International Court of Justice in The Hague issued a stunning rebuke to the United States under the Vienna Convention, ruling that we had violated the rights of 52 Mexicans on death row, including 15 in Texas, and ordering their cases to be reviewed. It was too late for Tristan, however; Bush signed off on his execution seven years earlier.
Gonzales' legal advice in both the Faulder and Tristan cases suggests that, in matters of life and death, he viewed international law and Article VI of the Constitution as irrelevant to Texas or, at best, inconveniences that might easily be circumvented by legal assertions grounded in shaky reasoning. Gov. Bush apparently agreed.
Much more will be at stake if Gonzales' interpretation of the Constitution and international law is allowed to take root in the loosely defined war on terrorism. With the U.S. image worldwide at what may be an historic nadir, it is hard to imagine how a decision by the president to abrogate one of the cornerstones of international human rights law would either enhance that image or encourage other nations to shoulder any of the costs of the ongoing Iraq adventure. In the end, however, what is most important is what these memos say about who we are as a nation. If the president has, in fact, rationalized a decision to abandon the Geneva Conventions on Prisoners of War and the U.N. Convention Against Torture for the poisoned promise of torture, he should explain to the American public how that squares with this country's commitment to the most fundamental principles of justice and decency.