Sanchez-Llamas v. Oregon – Oral Argument – March 29, 2006

Media for Sanchez-Llamas v. Oregon

Audio Transcription for Opinion Announcement – June 28, 2006 in Sanchez-Llamas v. Oregon

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John G. Roberts, Jr.:

We’ll hear argument first this morning in two cases, Sanchez Llamas v. Oregon and Bustillo v. Johnson.

Mr. Gartlan.

Peter Gartlan:

Mr. Chief Justice, and may it please the Court–

This case presents three questions.

The first is does article 36 of the Vienna Convention on Consular Relations confer rights to individuals such as Mr. Sanchez Llamas.

The second is can Mr. Sanchez Llamas enforce the right in a State criminal prosecution.

And the third is can the right be enforced by suppression.

The first issue is… is a matter of treaty interpretation, and the language of the article 36 is… is plain.

It confers three rights.

Article 36(1) says that the consulate and the individual can have free communication between them.

Article 36(1)(b) gives to the detainee, the foreign national detainee, the right to have his consulate notified of his arrest and the right to forward communication to the consulate.

And it also imposes a duty on the detaining authorities to inform the foreign national under… of his rights under that section.

And it’s critical, or at least important, and telling to… to notice that the detainee gets to control the communication.

The detainee initiates and controls the communication with the consulate.

It’s not the consulate contacting the detainee initially.

It’s the detainee authorizes the contact.

The secondary sources… we… we believe the text is plain, but if the Court resorts to any secondary sources, that too will confirm the plain language of… of the article.

John G. Roberts, Jr.:

I thought that the argument on the other side is that those references in the secondary sources and in the document itself are meant to make clear that if the individual detainee does not want contact with his consular officials, for example, in a case where he might be seeking asylum or something like that, that it was, as you said earlier, his decision and not necessarily that there was to be a departure from the norm in international… the international context where treaties are between the sovereigns and don’t confer enforceable rights on individuals.

Peter Gartlan:

Well, Your Honor, actually the article 36 is… is unique and different in that the revolutionary part of this is that the detainee did, for the first time, have the authority to have the consulate notified.

Typically most of the notification statutes, bilateral treaties, multilateral treaties require mandatory notification, but this is an instance where the detainee gets to control.

The detainee decides whether or not the consulate is going to be contacted.

John G. Roberts, Jr.:

Right.

So the… that’s what the different countries, the signatories, are supposed to provide, and if they don’t, that’s a matter to be taken up bilaterally between the countries involved and not necessarily an individual enforceable right.

Peter Gartlan:

Well, it… it could work on the international level as well.

You know, a state could complain to another state, but the question here is whether or not this article, as domestic law in the United States, confers a personal right to a foreign national detainee because a treaty in the United States, a self executing treaty… and everybody agrees this is that… works in two spheres, on two levels.

One level is the international level, but by… through the Supremacy Clause, the treaty is also domestic law.

And the question is whether as domestic law this treaty confers personal rights to individuals because–

Ruth Bader Ginsburg:

And at least you have the authority of the International Court of Justice that says this is a right.

This is not just a matter of between states.

Peter Gartlan:

–Yes, Your Honor.

Peter Gartlan:

Yes, Your Honor.

In two cases, the ICJ has held that this article 36 does confer rights to individuals.

There’s the LaGrand case–

Antonin Scalia:

That court is not a common law court, is it?

Peter Gartlan:

–No, Your Honor.

Antonin Scalia:

And not being a common law court, it’s not bound by its own prior decisions, is it?

Peter Gartlan:

I don’t believe so, Your Honor.

Antonin Scalia:

I think its statute says that it… it decides the particular case and does not set forth propositions of law that are binding in future cases.

If it’s not bound by its prior cases, I don’t know why we should be.

Ruth Bader Ginsburg:

How many times now has the ICJ said that this convention confers rights on the individual?

Peter Gartlan:

At least two, Your Honor, LaGrand and Avena, and both involved criminal cases.

Ruth Bader Ginsburg:

And what is the view of our treaty partners on that issue?

Peter Gartlan:

Many of the treaty partners view it as conferring a right, at least 11 tell an arrestee of his rights under… under the treaty and–

John G. Roberts, Jr.:

But do any of our treaty partners apply the exclusionary rule to violations of this?

Peter Gartlan:

–That’s beginning to happen, Your Honor.

In Australia and Great Britain, there… I believe it has been–

Ruth Bader Ginsburg:

Not at the time this treaty came into force.

Peter Gartlan:

–Excuse me, Your Honor?

Ruth Bader Ginsburg:

Not at the time the Vienna Convention came into force.

Peter Gartlan:

No, Your Honor.

Ruth Bader Ginsburg:

We were almost alone in having suppression as the remedy.

Peter Gartlan:

Yes, Your Honor, and–

John G. Roberts, Jr.:

We didn’t even have it then, did we?

Peter Gartlan:

–In 1969?

Yes, we did, Your Honor.

John G. Roberts, Jr.:

That’s when the convention came into effect?

Peter Gartlan:

That… that… excuse me.

That’s when the United States ratified the treaty, 1969.

Antonin Scalia:

What… what remedies have other countries provided for… for these rights?

I mean, it’s… it’s easy to say the right exists.

Antonin Scalia:

What… what have other countries done by way of vindicating these rights?

Peter Gartlan:

Typically I think the–

Antonin Scalia:

I mean, advising them of them is… is really not vindicating them, it doesn’t seem to me.

Peter Gartlan:

–Typically it is a matter of state to state complaints or apologies and–

Antonin Scalia:

Well, that’s… but, you know, that’s what the other side said the whole thing should consist of, that it’s a matter to be enforced by… by state to state protests, not… not by the judicial system or the legal system taking it upon itself to provide a remedy.

What… what remedies have been provided in… in other countries?

You… you mentioned an exclusion in Australia?

Peter Gartlan:

–Yes, Your Honor.

Antonin Scalia:

When… when was that?

Peter Gartlan:

Offhand… I believe it’s within the last couple years.

Anthony M. Kennedy:

Was there a showing of prejudice in that case or just automatic exclusion?

Peter Gartlan:

No, it’s not automatic.

Typically in the commonwealth countries, a judge has a lot of equitable authority to kind of balance some interests and decide whether or not to exclude the… the evidence.

And I’m not saying that it’s happened worldwide, that it’s pervasive practice, but in… in some sense, what other countries are doing in their individual systems, it’s nice to know that it’s not all that controlling because the question, again, is how does this statute work as domestic law.

David H. Souter:

Well, is that… that… my question was going to be are… are you suggesting or arguing that the remedy ought to be exclusion as a matter of domestic law or as a necessary implication of… of the treaty?

Peter Gartlan:

It’s a necessary implication or it’s an implication of the treaty, of section 2 of article 36.

But–

David H. Souter:

Well, what would you do in a country that does not apply an exclusion remedy in… in domestic cases given the provision, which I can’t quote correctly, but you’ll know what it is, the… the provision that the treaty will… will be administered in accordance with or consistently with, I guess it is, domestic law so long as full effect is given to its substantive provisions?

I would have thought that that… that that provision for administration in accordance with domestic law would have a great bearing, if… if not being dispositive, on the remedy, so that if I were answering the question I… I had asked you, I… I would have said, well, it’s probably a domestic law basis for… for exclusion, but not a treaty basis.

So why in those countries… getting back to… to my… why… why in those countries that do not customarily apply an exclusion remedy wouldn’t it be consistent with the treaty for them to decline to apply it given the provision for administration consistently with… with domestic law?

Peter Gartlan:

–It could be appropriate.

The treaty was prepared… drafted full knowing that there are various and myriad kinds of legal systems throughout the world, and it wasn’t intended to say, here’s the… here’s the remedy because typically under international law, the remedy is… is a domestic remedy.

And this… this doesn’t… the treaty does not say, thou shalt suppress.

John G. Roberts, Jr.:

Well, if it doesn’t–

David H. Souter:

So if the treaty–

John G. Roberts, Jr.:

–Why don’t you go ahead?

David H. Souter:

–The… the treaty provision then governs only in the sense that for remedy it refers you to domestic law.

Is that it?

Peter Gartlan:

Yes, Your Honor.

David H. Souter:

Okay.

John G. Roberts, Jr.:

So… so if the treaty doesn’t say suppress, what authority does a Federal court have to direct a State court to exclude evidence?

Peter Gartlan:

Through the Supremacy Clause, Your Honor.

John G. Roberts, Jr.:

The Supremacy Clause gives effect to the treaty.

You just told me the treaty doesn’t require suppression.

Peter Gartlan:

Well, the treaty doesn’t in… in its text doesn’t say, thou shalt suppress, but is… it is a source of authority because the treaty says thou shalt give full effect to the law.

Antonin Scalia:

Well, it’s just a source of authority but not a source of authority for suppression.

And I find it implausible that we signed a treaty which requires us to suppress evidence of this sort, but allows the other treaty partners to do whatever they like, not… not suppress, let it in, rely upon consular protests.

Is… is that what this provision, you know, in accordance with domestic law, means, that… you know, each man to himself?

Peter Gartlan:

In… in many cases, yes, Your Honor.

Again, the… the drafters recognized that remedies would be local, and so the question is for our system, for the United States system, how does the United States system… how does it remedy breaches.

And it depends upon the type of the breach.

In this instance, the breach here involved statements, and so the breach occurred when the authorities did not inform Mr. Sanchez Llamas of his right to contact the consulate.

Anthony M. Kennedy:

Well, of course, that’s assuming a causal link, which is an altogether different problem.

But it’s still not clear to me.

Are you saying that we should require the States to follow and the United States Government to follow an exclusionary rule because that’s what the treaty requires or because this is the remedy that we ought to devise in the exercise of our supervisory powers?

And if it’s the latter, it seems to me surely there must be some causal linkage between the violation and the… and the statement at… at a minimum.

Peter Gartlan:

Yes, Your Honor.

Well, it’s kind of a combination of both.

The treaty directs give effect to these rights.

And we are asking the Court to exercise its authority to remedy the breach because suppression is a creature of this Court’s authority, common law authority.

Ruth Bader Ginsburg:

You don’t think that the… that the remedy that the ICJ imposed in the case where the United States was before it as a party, that that would be the appropriate remedy?

It was not suppression.

It was reconsider this, taking account of the failure to notify and what might have happened if notice had been provided.

Peter Gartlan:

Yes, Your Honor, and then supply whatever remedy would be appropriate.

And again, that… that’s a call upon the judiciary to remedy treaty violations, and… and that’s been–

Ruth Bader Ginsburg:

But there wasn’t any word in either of the ICJ judgments, if I recall them correctly, that said, United States, you have a suppression remedy, so you should suppress.

Peter Gartlan:

–No, Your Honor, because again, remedies are a question of domestic law, so it’s up to the domestic courts to decide what would be the appropriate remedy.

Samuel A. Alito, Jr.:

Well, did you ask for any remedy in this case other than suppression?

This arose on the motion to suppress, am I right?

Peter Gartlan:

Correct, Your Honor.

Peter Gartlan:

No other remedy but… but suppression.

Anthony M. Kennedy:

One of the things… and I… I really have this question for all counsel.

If the Miranda warning is given, it seems to me that that comprehends the relief that you need.

If the accused talks with his attorney, his attorney is presumed to know the treaty’s… the provisions of the convention.

If he does not, he proceeds at his risk.

Attorneys have lots of things they can tell clients, and if you don’t have an attorney, you proceed at your risk.

I just think this is a very important point here.

Peter Gartlan:

Yes, Your Honor, and many courts have held that… well, the Miranda rights pretty much encompasses these rights, but they’re different.

These are standalone rights, and what’s critical about this, what’s really important is that for every United States citizen who’s arrested… and typically interrogation is going to follow quickly on the heels of the arrest… they’re giving the Miranda warnings.

And essentially they have three options.

They can speak to the police.

They can invoke the right to silence, or they can invoke the right to an attorney.

However, foreign nationals have a fourth option and that fourth option is they can have the consulate contacted, if they want.

And the consulate provides different kinds of information and support for the arrestee.

And it’s… what’s critical is… what’s hard to see is that because we’re in this country, we don’t see it, but if you’re overseas and you’ve been arrested… let’s say you’re in Damascus and you’re given a dime and your options are to call the local attorney provided by your jailers or the American consulate.

And I think it’s pretty clear that most people are going to call the American consulate.

Why?

It’s because there’s a kind of a familiarity.

There’s an attraction there.

There’s an appeal.

There’s security.

You’re dealing with the known.

Whereas, a local attorney, it’s the unknown, and it’s by the local authorities.

Antonin Scalia:

That may give you a warmer feeling inside, but do you think that the foreign consulate is… is more likely to give you good advice about what you should do under American law than an American lawyer that you’ve been provided?

Peter Gartlan:

Well, you know, Your Honor, it’s not really the content of the advice.

The question is at this point what would people do, and the legal error here, what’s wrong, is that the foreign national is given the same three options, but by law, he’s supposed to have a fourth option.

Antonin Scalia:

Yes, but I’m just saying whether it makes any difference.

I mean, you’re talking about anything that… that affects substantive rights.

He’s been provided an attorney who knows American law better, presumably, than… than a consular official.

What… other than the comfort of… of speaking to somebody from his own country, what… what’s the substantive harm here?

Peter Gartlan:

Well, but really he hasn’t been given an attorney yet, Your Honor.

We have to remember this is the arrest has been made and he’s confronted with options.

Anthony M. Kennedy:

Well, but you… you want us to write an opinion to say that we’re holding our attorneys to the same standard of evaluation as the attorneys in Syria–

Peter Gartlan:

Oh, no, Your Honor.

Anthony M. Kennedy:

–and… and our bar is… is not to be trusted to have the expertise that’s at least equivalent to that of the foreign counsel?

Peter Gartlan:

No.

What I’m saying, Your Honor, is that if you’re arrested, the next… you have a choice, and you have one of three if you are a national, but if you’re a foreigner, you have one of four.

And the question–

Stephen G. Breyer:

The question–

Anthony M. Kennedy:

But the question is who tells you about that choice, and your attorney can tell you about that choice.

Peter Gartlan:

–But this contemplates that the detaining authorities informed the person of… of what their rights are to contact the consulate.

Stephen G. Breyer:

–Suppose they don’t do it.

They don’t do it.

They violated the treaty.

Peter Gartlan:

Yes, Your Honor.

Stephen G. Breyer:

We assume that.

Then the question is what is a proper remedy.

Peter Gartlan:

Yes, Your Honor.

Stephen G. Breyer:

And I’ll assume with you, for the moment, that… that the treaty has to be read as saying you have to have some kind of appropriate remedy, but it doesn’t say what kind.

So why isn’t it an appropriate remedy that he was given a lawyer, if he wanted one, and the lawyer either told him about the right to talk to the consul or he didn’t.

And if he didn’t… if he did, he found out, and if he didn’t and it mattered, maybe that was ineffective assistance of counsel.

So if we have ineffective assistance of counsel claims to take care of the tough cases where it really did matter, doesn’t that suffice under the treaty, or does it?

Peter Gartlan:

Your Honor, I’d… I’d like to… to move back the discussion to there’s no attorney yet, and the question is what can that person do.

And… and the error–

Stephen G. Breyer:

Oh, he’s stuck without an attorney.

I have no doubt about that.

I have no doubt that the treaty was violated.

I follow you that far, but now you’re talking about the domestic court’s power to do what there is an international obligation to do, which is to create a remedy.

I’m not sure why that remedy need always be suppression.

Peter Gartlan:

–Your Honor, it needn’t–

Stephen G. Breyer:

I think sometimes it could be something else.

Peter Gartlan:

–Yes.

It depends on the legal injury that flows from the violation.

Now, in this instance, we’re dealing with statements because again, to illustrate perhaps, even a national, given these three options… what if the police forgot to tell the… the person that he has a right to an attorney?

Now, he’s given these two options, and he… he waives those.

And that waiver is voluntary, but it’s still invalid as a matter of law because he wasn’t given all the options he’s supposed to be given.

And that’s the difference because we don’t know what would have… typically you don’t know what would have happened if somebody were given all the options.

That’s… that’s a problem.

So now–

Ruth Bader Ginsburg:

But we do know, don’t we, Mr. Gartlan, that if the treaty had been followed, it still would have been permissible for the police, having given Miranda warnings, to commence interrogation?

The treaty does not require that the enforcing officials in this country immediately call the foreign consulate.

Isn’t that so?

Peter Gartlan:

–Well, actually the language of the article says without delay, Your Honor, so that suggests that there’s some kind of promptness that’s… that’s involved.

Ruth Bader Ginsburg:

Promptness.

And I think that the United States has told us it’s generally done here somewhere between 24 and 72 hours.

A suspect who has been given Miranda warnings as here… the conversation with the police, the interrogation, could begin before that 24 hours or 72 hours expires.

Peter Gartlan:

And our reading of the article is that once the… the police know or have grounds to believe that the… that the person is probably a foreign national, then that duty arises on the police to give him his rights.

Ruth Bader Ginsburg:

Yes.

Antonin Scalia:

That’s fine, but–

David H. Souter:

It’s a–

Antonin Scalia:

–Go ahead.

David H. Souter:

–We keep doing this.

Antonin Scalia:

Yes, we do.

David H. Souter:

It’s… it’s a duty to advise him of… of his right to have them notify the… the consulate.

It is not a duty to remain silent until the consulate responds.

And even if you are correct that the obligation to… to advise him and to give the notice arises immediately upon the realization that he’s a foreign national, I don’t see anything in the treaty that requires them to defer interrogation until the… the consulate has decided whether it wants to do anything or not.

Peter Gartlan:

Yes, Your Honor, but in… in this case, the… the statements that we’re seeking to suppress, the harmful ones, occurred about 8 hours after the initial arrest.

However–

David H. Souter:

Well, do you… do you say, going back to… to the point Justice Ginsburg made, if the United States follows a 48 to 72-hour rule, is… is that a violation of the treaty?

Peter Gartlan:

–Yes, Your Honor, because our position is that once somebody says, yes, I… I want to speak with the consulate, it’s like saying I want to speak with my attorney or I want to invoke my right to silence.

Peter Gartlan:

It’s a signal that this person believes that they are being overwhelmed by the situation, that they are no longer in control, and they’re trying to exercise some control.

Now, this Court doesn’t have to make this ruling in this case, but our position would be if somebody invoked–

David H. Souter:

Well, we… we might have to make it in this case.

Antonin Scalia:

We’d have to make an 8-hour ruling in this case anyway if… if we agree with you.

Peter Gartlan:

–Well, our… our position is that if there’s an indication of a right to have the consulate contacted, that’s like a cry for help.

It’s like… it’s an alternative way of saying I want… I can’t deal with this anymore.

I’m… I’d like my right to silence.

And–

Antonin Scalia:

Gee, what about… what about countries that don’t have an extensive telephone system, you know, where you… you have to send a runner to notify the consul?

Peter Gartlan:

–That would be a problem for that country and people in that country.

But now we’re dealing with–

Antonin Scalia:

Well, it… it just makes me think that… that instant contact is not what was envisioned by the treaty.

Peter Gartlan:

–The treaty is supposed to be applied in every country, and there are going to be different results.

The drafters recognized some… some countries have different systems, different waiting periods before there’s interrogation or before there’s contact.

And all this treaty does is it puts the foreign national on par with an American, with the United States citizen.

That all intends to do.

John G. Roberts, Jr.:

Thank you, Mr. Gartlan.

Peter Gartlan:

Thank you, Your Honor.

John G. Roberts, Jr.:

Mr. Stancil.

Mark T. Stancil:

Mr. Chief Justice, and may it please the Court–

Mario… Mario Bustillo was not advised of his rights under article 36 in direct contravention of the treaty.

As a result, he went to trial for first degree murder, having had no contact with a consular officer from his home country and being completely unaware that he was entitled to do so.

The Virginia courts improperly relied upon the result of that violation, itself the product of failure to comply with the treaty, to refuse to consider critical exculpatory evidence that was uniquely in the possession and available with the assistance of the consular officers.

That evidence would have included official government immigration records, corroborating a key defense witness, and proving that the alternative suspect, a Honduran national, known as Sirena, fled to Honduras the day after the victim died.

The Honduran consulate also would have provided Sirena’s address and attempted to interview him.

Indeed, once Bustillo’s habeas counsel located Sirena in Honduras, he obtained a surreptitiously videotaped confession in which Sirena admitted, in chilling detail, to committing the crime and acknowledged that Mario Bustillo had been wrongly convicted.

Anthony M. Kennedy:

Has the Honduran Government offered to arrest and extradite that witness from Honduras to bring him back to the United States?

Mark T. Stancil:

Not on this record, Your Honor, but the Honduran consulate has offered… has said it would have attempted to locate Sirena and interview him.

And acting with far fewer resources, before the Honduran consulate was even aware of this case, petitioner’s habeas counsel got this confession, the point being it wasn’t that hard to get, to trick this person into admitting, yes, he… he committed the crime.

And in the confession, which is on pages 33 to 55 of the… of the joint appendix, there are a number of… of details in that confession he could have known no other way.

Mark T. Stancil:

Moreover, the Honduran consulate would have provided, and ultimately did provide, a photograph of Sirena.

Samuel A. Alito, Jr.:

Well, that, Mr…. could your client’s attorney have argued in the Virginia habeas proceeding that his procedural default should have been excused because of ineffective assistance of trial counsel at the time of the default?

Mark T. Stancil:

Yes.

However, an ineffective assistance claim… and I should back up.

It was raised.

The… the habeas court disposed of it on two grounds, saying it was beyond the statute of limitations because an ineffective assistance claim, based on the Vienna Convention, did not relate back, but also denied it on the merits and said it wouldn’t have met the Strickland standard anyway.

But the ineffective assistance claim is ineffective to address the treaty violation for two reasons.

First, the treaty gives you a right to be notified.

It protects the special relationship between a consular officer and the detained foreign national, and channeling these claims to ineffective assistance doesn’t vindicate that separate Federal right.

John G. Roberts, Jr.:

Well, Miranda gives you the same, you know, right to… to reach a counsel, a right to remain silent, and yet, if your lawyer doesn’t raise a Miranda violation in trial, it can be waived.

Mark T. Stancil:

Correct.

John G. Roberts, Jr.:

Why should this be elevated to a special status beyond that?

Mark T. Stancil:

It’s not elevated, Your Honor.

It’s actually treated more like the right it resembles, like a Brady right, which is not defaulted if you don’t raise it… raise it at trial, for three reasons.

First, like a Brady case, a Vienna Convention violation resulting in the exclusion of exculpatory evidence is, by its nature, not known at the time of trial.

David H. Souter:

No, but isn’t… isn’t the problem with your analogy that counsel do not advise their clients about Brady rights because, by definition or in the normal case by definition, counsel doesn’t know whether there’s a Brady violation.

But counsel does know or, it seems to me, can properly be charged with knowing that when he’s representing a foreign national, the foreign national has a Vienna Convention right, just as much as the foreign national has a Miranda right, and he can advise him of that.

So it seems to me the Brady analogy is… is not apt.

Mark T. Stancil:

A Brady violation is a closer match than a… for example, a Miranda violation, for the central reason that the consular officer and the foreign national, working together, know best whether to exercise those rights.

Ruth Bader Ginsburg:

But in this case, wasn’t it true that the trial counsel knew about the Vienna Convention right and, for whatever reason, thought his client would not be aided by talking to the Honduran counsel… consul.

Mark T. Stancil:

As an initial matter, it’s… it’s not perfectly clear in the record.

He submitted an affidavit stating that he never advised clients of Vienna Convention violations, but it does not say on this record that he knew at the time of trial about the Vienna Convention.

But even granting that he did, the attorney is not in the position to make that decision.

This case illustrates why, and this is my second reason why an ineffective assistance claim, Justice Alito, would be insufficient, which is ineffective assistance trusts strategic decisions about whether to invoke a right to the counsel, but the counsel, the lawyer, is not… is not in a position to make that decision for his client.

As this case illustrates, even assuming that the counsel knew about the Vienna Convention right, he said, well, that’s more trouble than it’s worth.

This case illustrates precisely why we don’t leave those decisions with the lawyers.

First and foremost–

Samuel A. Alito, Jr.:

That may or may not have been ineffective assistance of counsel.

But I don’t understand why… if a jurisdiction in this country has a procedural default rule that can be overcome by a showing of cause and prejudice with ineffective assistance of counsel being cause, why isn’t that a remedy that is sufficient to give full effect to the treaty, which is what the treaty requires?

Mark T. Stancil:

–Because that cuts out an entire category of treaty violations where it may have been a strategic decision by counsel not to raise it, but where that decision is ultimately mistaken.

Mark T. Stancil:

And as the treaty is structured–

John G. Roberts, Jr.:

Well, it’s true about the right to remain silent or any other rights that are very much the rights of the defendant, not the rights of the counsel, but they’re exercised in consultation with the counsel, and if they make a determination not to contact the consul, then that’s a decision that counsel made, and if it’s ineffective, there are remedies for that.

I’m not sure how it’s different than the right to remain silent.

Mark T. Stancil:

–Well, I should back up and… and point to the first reason why a lawyer isn’t effective in making this decision and… and first, state that the lawyer here never told Mario Bustillo about the Vienna Convention.

So it isn’t that situation where he consulted with his client and elected not to raise it.

He didn’t even tell his client.

But more fundamentally, the lawyer operates under inherent conflict of interest.

The first thing the consular officer does, when he makes contact with a foreign national, is decide is the lawyer that he has good enough.

In fact, it’s the only form of consular assistance that’s specified in the text of the treaty.

In article 36(1)(c), it says to ensure that he can obtain adequate legal representation.

So the lawyer, who’s deciding whether to get the consulate involved, has to think in the back of his mind, well, is the first word out of this consular officer’s mouth going to be, well, you know, fire this guy and get a new lawyer.

That’s why we don’t trust those rights to the lawyer, and that’s why the treaty doesn’t trust those rights to the lawyer.

David H. Souter:

But once, at least–

Stephen G. Breyer:

Why… the ultimate question I think is the one Justice Alito asked.

I think, as I read the ICJ treaty, we’re under a legal obligation in this country to provide a reasonable, effective remedy.

And why isn’t that a reasonably effect remedy?

Treat it, you know, like any other problem where the client should have learned something and he didn’t.

If the lawyer is there, this is obligation.

The lawyer tells him, and if the lawyer fails to tell him, then that’s ineffective assistance in an appropriate circumstance, or if it isn’t, it isn’t.

But that’s a good remedy.

What’s wrong with that?

And the other obligation is, counsel, you have to raise this issue as soon as everybody learns about it, in which case you might be out because I don’t… he’s certainly learned about it by the time he was on appeal, and as I read your brief here, he didn’t raise it on appeal either.

Mark T. Stancil:

I’d… I’d like to correct that very clearly.

As soon as Mr. Bustillo got new counsel on direct appeal–

Stephen G. Breyer:

Yes.

Mark T. Stancil:

–he submitted a motion to remand to… back to the trial court, saying there’s a Vienna Convention violation–

Stephen G. Breyer:

He said… when I read that motion, which I’ll do… so it’s in the record?

Mark T. Stancil:

–Yes, sir.

Stephen G. Breyer:

Where?

Mark T. Stancil:

It’s… the Virginia courts don’t paginate the record–

Stephen G. Breyer:

Do I have it in front of me somewhere?

Mark T. Stancil:

–It’s in the record, yes, Your Honor.

Stephen G. Breyer:

Fine, okay.

Now, in other words, he did raise it.

Okay.

If he did raise it, then maybe he would be entitled to this relief.

Mark T. Stancil:

We would have–

Stephen G. Breyer:

But is… my general question is, is that approach sufficient under the law?

Mark T. Stancil:

–Getting back… is ineffective assistance sufficient?

Yes.

Stephen G. Breyer:

Say, in an appropriate case, I can’t find a rule for every case… but that our obligation, as interpreted by the ICJ, is that we have, as the law of the land, a treaty that says you tell the person about his Vienna Convention right, and if you don’t, now says the ICJ, there has to be some kind of… of effective remedy.

Now, assuming that’s the law of the United States, why isn’t this approach an effective remedy?

Mark T. Stancil:

Because relying on the lawyer to do the duty of the State does not effectuate the fundamental interest the treaty serves, which is establishing direct contact between the consular officer and the lawyer.

David H. Souter:

–But the… the only thing in… in the second part of Justice Breyer’s question, the only thing that the lawyer has to be relied upon is to get the issue raised at the appropriate point in the trial process.

And… and so, at the very least, what Virginia is… is arguing here is that he waived it because no objection was raised based upon a prior Vienna Convention failure.

That is a very conventional obligation upon lawyers.

It… it’s an obligation that goes to Miranda.

It’s an obligation that goes to any denial of rights of which counsel could or should be charged with knowing, and I don’t see why there should be an exception made to… to that obligation to raise the issue.

Mark T. Stancil:

Leaving aside the conflict of interest that the lawyer would suffer on two additional reasons why the… why the lawyer is not–

Antonin Scalia:

Can I come back to the conflict of interest?

Was… was this lawyer a compensated lawyer, or was he a public defender?

Mark T. Stancil:

–He was retained.

Antonin Scalia:

He was retained.

Mark T. Stancil:

Yes, Your Honor.

Antonin Scalia:

By whom?

Mark T. Stancil:

By the defendant’s family.

Stephen G. Breyer:

There… there are rules on conflicts of interest too, you know.

So following our normal rules, is there any country, is there any international law, is there anything in American law that would suggest, in respect to any kind of significant procedural failure, that the State has to do more than we’re just talking about?

Mark T. Stancil:

I’m not sure I–

Stephen G. Breyer:

And if so, what is it?

Mark T. Stancil:

–Is there international authority required–

Stephen G. Breyer:

Anywhere.

I… I just think–

Mark T. Stancil:

–Well–

Stephen G. Breyer:

–think for our most severe violations, we provide an approach that you tell the lawyer.

The lawyer brings it up.

If the lawyer doesn’t bring it up and it’s important or there’s a conflict of interest or something terrible is going on, normally you’d say that’s ineffective assistance.

And I just wonder if that approach doesn’t work here.

Mark T. Stancil:

–It does not.

First and foremost, it doesn’t vindicate–

Stephen G. Breyer:

Well, I’m not interested in, now at the moment, whether it does or does not work.

I want to know if there’s any country or anywhere else in American law or international law where people have gone further than that.

And there might be.

I’m asking it seriously.

Mark T. Stancil:

–Well, the… well, the ICJ has held that you can’t rely… that these procedural default rules are not adequate to vindicate the treaty interests.

Stephen G. Breyer:

I’m not talking about a procedural default rule.

I’m talking about the system that was suggested.

Mark T. Stancil:

In… in terms of ineffective assistance?

Stephen G. Breyer:

Yes, the procedural default rule would mean you get procedurally defaulted if you fail to bring it up, but I think you might say if you failed to bring it up the first time that the lawyer knew about it.

And if it’s his fault for not bringing it up or he should have known about it, then he’s out… the client.

But if it’s not, he’s not out.

Mark T. Stancil:

I believe that actually would not be the practice in civil law countries, for example, where a judge as the inquisitor has much more flexibility than he does in an adversarial system when and whether to consider evidence that may or may not have come in at a certain time.

But I’d like to get back to, Justice Souter, your question, with respect to two additional points why the treaty… and I’m not saying this is our rule… the treaty says the State has to notify and… and it doesn’t say the lawyer has to notify.

David H. Souter:

No.

And I’m not… I’m not suggesting anything that… that affects that.

Yes, the State does have to notify him, and if he wants, the State has to make the phone call.

What I am suggesting is that the lawyer should be taxed with knowing that that is the individual’s right.

The lawyer should be taxed with knowing that because it’s the law of the land.

It’s a treaty.

And… and it seems to me the obligation is upon the lawyer to say, well, did they… did they tell you, did they notify the consul, just as the lawyer would say, did you get the Miranda warnings.

David H. Souter:

And… and if the lawyer does not make that inquiry and does not raise an objection, whatever it may be, if in fact the individual didn’t get his rights, then I don’t see why there should be… there should not be a waiver with respect to the Vienna Convention objection, just as there is a waiver with respect to a Miranda objection or a search and seizure objection and… and other constitutional rights.

Mark T. Stancil:

And again, ineffective… an ineffective assistance claim doesn’t give full effect because under this Court’s cases, if it’s… if it’s in the rubric of ineffective assistance, you leave strategic decisions to the lawyer, and so if–

Ruth Bader Ginsburg:

Well, the problem at the trial level, I think, is you would be… you couldn’t make it at that stage because it’s the very lawyer who’s ineffective.

Here, it was raised by a new counsel on appeal, and that’s really the first opportunity it could come up because the… the lawyer who didn’t give this advice certainly isn’t going to say, in… in the course of the trial, I was ineffective.

So… and that’s I think the point that the ICJ was trying to make when it said you couldn’t use the procedural default rule.

Mark T. Stancil:

–Yes, Justice Ginsburg, and in that sense, it’s very much like the rule this Court laid down in Federal cases in Massaro where it… it explained just the practical difficulties associated with requiring claims that need, for example, a prejudice record, and everybody believes that a prejudice showing would need to be made before you could establish a violation.

But here, we’d have to… we have to go back and we need the tools of post conviction review to establish prejudice.

And here, once we got there… this is… this is not speculation.

This is a lawyer made a strategic decision, he says, not to tell his client.

And then we tried to raise an ineffective assistance claim, and the court said… in addition to saying it was barred for other reasons, said that doesn’t meet Strickland.

This is that category of treaty violations that, if you push these claims to ineffective assistance, they evaporate, and that does not get–

Anthony M. Kennedy:

Well, it’s the same point we’ve been covering, but all seem to concede that the particular characteristics of a national system have to be taken into account.

And the distinguishing feature of our system is that it’s an adversary system.

And you’re asking us to make an exception to that system–

Mark T. Stancil:

–I–

Anthony M. Kennedy:

–an exception to the usual rules that prevail in that system, and that’s not consistent with what the treaty requires.

Mark T. Stancil:

–Your Honor, it’s no more of an exception than Brady, which is exactly the same situation where you have a right that you don’t know either the violation has occurred, because they didn’t tell him and his lawyer didn’t tell him, and you don’t know the evidence that could have been developed.

Here, once that… once that missing piece, that one critical part of article 36, direct notification and contact with the consulate, once that key is removed, everything else follows.

Anthony M. Kennedy:

Well, but that’s because in Brady, as Justice Souter has already pointed out, there’s a factual piece of evidence that the State has withheld.

Here, the lawyer is presumed to know the law.

It’s just not an apt analogy.

Mark T. Stancil:

We believe it is, in part, because this is an affirmative obligation on the State.

Miranda is a rule, for example, that requires you to say what the… the rules of the game are and this is how it works.

This is different.

This is fundamentally different.

This says, you’ve got to tell him individually to go out… you’ve got to tell him that he has a right to go out and ask somebody for help, and it gets him access to resources that are uniquely within the possession and control of a consular officer.

The government immigration records.

The consular… the lawyer could not have gotten those records.

They were crucial to the defense.

More fundamentally, the lawyer didn’t even know those existed So even if you would assume that an ineffective assistance claim could remedy violations… and… and we certainly believe this case and a large category of other cases could never be remedied through ineffective assistance claims as a practical matter.

Mark T. Stancil:

Even then, all it does is breed ineffective assistance claim after ineffective assistance claim because the trial lawyer doesn’t know what’s in the embassy file.

David H. Souter:

Well, maybe after the first ineffective assistance claim is decided in the client’s favor, people are going to wake up.

I mean, you have to admit at this stage of the game… and it’s not your client’s fault, but the… this is a fairly rare bird.

And… and if, in fact, it were held to be… let’s… let’s assume that… that on… on collateral review, someone in your client’s position made the following claim.

Number one, the State didn’t tell me.

They… they failed in their Vienna Convention right.

Number two, my lawyer never inquired of me or of anybody else whether the State had given me my… my Vienna Convention rights.

And therefore, my… my lawyer was ineffective.

If on collateral review a claim like that is made, it is accepted and prejudice is found, I would imagine the bar is going to wake up fairly fast to what’s going on.

Don’t you?

Mark T. Stancil:

It doesn’t seem to be the case.

In fact… and our research has revealed that about 60 ineffective assistance claims based on the Vienna Convention violations… it’s ambiguous as to whether there’s one or none where the court has granted relief either on prejudice grounds or performance grounds.

So litigants have tried, but that just shows what a poor fit ineffective assistance claims are.

David H. Souter:

May I ask you one factual question?

And I… I should know this.

I just… if… if I did know it, I can’t remember it now.

Was any ineffective assistance claim raised… I… I take it there’s no ineffective assistance claim that was ever raised on collateral review here because you’ve never gotten to a collateral review stage.

Is that correct?

Mark T. Stancil:

We did file an ineffective assistance claim in the State habeas petition.

David H. Souter:

But that… wasn’t… I’m… I’m sorry?

Mark T. Stancil:

The… the circuit court… we then tried to amend… habeas counsel tried to amend the petition to specify an additional… that to include within that ineffective assistance claim the failure to notify.

David H. Souter:

But you did that on collateral review as opposed to trying to supplement the direct appeal?

Mark T. Stancil:

Yes, Your Honor.

David H. Souter:

Okay.

Mark T. Stancil:

If I may, I’d like to reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, Mr. Stancil.

Ms. Williams.

Mary H. Williams:

Mr. Chief Justice, and may it please the Court–

Counsel describes the rule that he asks this Court to announce under article 36 as revolutionary, and I think that’s accurate.

It would be revolutionary for this Court to construe the article 36 of the Vienna Convention to grant an individual foreign national a right to obtain a judicially created sanction against the State for its failure to provide the information that it is obliged to… to provide under article 36.

Mary H. Williams:

No other signatory’s court has construed the treaty to permit an individual in a criminal proceeding to raise the kind of challenge that petitioner seeks to raise here, and certainly no other court has suggested that exclusion of lawfully obtained evidence would be the appropriate remedy for that violation.

Stephen G. Breyer:

Have there been any courts that have held the contrary?

Have there been courts that said when somebody wasn’t notified and they sought to obtain some remedy for that, that even though the treaty has been violated, you have no remedy under our system?

Mary H. Williams:

There have been only a handful of courts that have dealt with the issue.

Stephen G. Breyer:

Which are… which is the best authority abroad for you that… where they say, no, we’re sorry, we give you no remedy, even though we violated the treaty?

Mary H. Williams:

Yes, Your Honor.

The… a Canadian court has said that the… that there is no… no remedy for… in a criminal proceeding for that sort of remedy.

And there are, in fact–

Stephen G. Breyer:

That’s a holding?

They… they held that?

Mary H. Williams:

–It is a holding.

It’s a lower court opinion.

It’s not the–

Stephen G. Breyer:

So we have a lower court opinion in Canada, and you… and they have a lower court opinion in Australia.

Is it fair if I come to the conclusion no one has ever really decided this?

Mary H. Williams:

–I think that’s absolutely fair, and what’s–

Stephen G. Breyer:

All right.

If… then if that’s fair, is it fair also for us to say that… that we have to take this treaty, since it’s self executing, as if it were written into American law?

Mary H. Williams:

–I think, though, it is–

Stephen G. Breyer:

Is that fair?

Mary H. Williams:

–Yes, that is fair, but I think it–

Stephen G. Breyer:

Okay.

If that’s fair, then suppose you’re coming… suppose the treaty had said… and it’s part of American law.

Mary H. Williams:

–Yes.

Stephen G. Breyer:

It didn’t say this, but suppose it had.

You have to inform this individual, and if you don’t inform the individual, you have to give him a remedy so that he is not prejudiced thereby.

Now, if it had said that and the State or the Federal Government refused to give him a remedy and it’s part of American law, wouldn’t we have to say that American law, Federal law, treaty law requires you to do that rather than what you’re doing, if it had said that?

Mary H. Williams:

If it had said that–

Stephen G. Breyer:

Okay.

Mary H. Williams:

–I would agree with you.

Stephen G. Breyer:

And once we’re there, it seems to me what we’re arguing about is not this metaphysical thing about rights.

We’re arguing about what the treaty says.

Now, if that’s so, I… I think we’re back to where we were in the last case and say does this treaty or does it not, as a matter of American law, say that the person is entitled to some kind of remedy.

And our problem there is that the ICJ has said, yes, it does, but it doesn’t mention it, but it does say that you cannot have procedural rights that do not give full effect to the purpose of… of this section.

So where are we?

Mary H. Williams:

I think the starting point is with the text and context of the treaty, and beginning with the preamble that makes it very clear that this treaty, like other international treaties, is an international agreement concerned with the obligations of the signatories, not with any particular granting of rights for the individuals who may benefit from those obligations.

And one thing that the preamble makes very clear is that matters not expressly regulated by the provisions of this treaty are left to the rules of customary international law.

The only remedy that is discussed as part of the… the treaty negotiation is the optional protocol that would permit signatories, not individuals, to take a dispute under the treaty to the International Court of Justice.

So there is little evidence in the context of the treaty and there is evidence contrary–

Stephen G. Breyer:

Well, the… the thing I found stronger the other way, which you can answer, is that ordinarily, I guess, since they quote in one these amicus briefs, since at least 1927 we consider… our State Department… the treaties that have obligations are… also require appropriate enforcement remedies, et cetera.

And we have Avena and we have LaGrand, and there the ICJ, as I read it, has said you have to have some kind of remedy, being pretty vague about what kind it is.

So normally we follow the ICJ, if we can.

Schooner Betsy and go back forever.

All right.

So why not?

Just follow what they say, say there has to be some kind of remedy.

And then we put our minds to figuring out what that kind is.

Mary H. Williams:

–Your Honor, even following the ICJ opinion in Avena does not get petitioner the relief that he seeks in this Court or that he sought below.

It does not get you to suppression of the statements that were made.

It’s… it’s… there are a couple of very important things to consider in the Avena decision from the ICJ.

They discuss suppression and the exclusionary rule, and they specifically reject Mexico’s assertion that there’s a connection somehow between the provision of information and… under the article 36 and the ongoing criminal interrogation.

So… and they also discuss the… the concept of without delay and what that meant to… to those who put together the treaty.

And it does not mean immediately.

So there… under the ICJ’s reading of the treaty, there would not be a basis to suppress the statements that petitioner seeks to suppress in our court.

I think–

Ruth Bader Ginsburg:

Is there any other relief sought by the petitioner?

There was the suppression request.

Was there any other?

Was there a request of the kind that the ICJ thought would be appropriate, which was, court, reconsider this and determine whether the defendant was prejudiced by the absence of Vienna Convention notice?

Mary H. Williams:

–There… there was not, Your Honor.

Mary H. Williams:

The only remedy that petitioner has sought in this case is suppression of the statements.

And it’s also important, I think, to make the distinction between the Oregon case and the Virginia case.

In the Oregon case, it’s clear that counsel for petitioner knew about the obligations under article 36 and raised them in the motion to suppress.

And so there’s no question about the State’s obligation to… to inform the consul that the… that petitioner was being detained or any concern with interference with consular access and communication.

The only violation that we have in the case is that the State failed to provide the information that it was obligated to provide under article 36.

Ruth Bader Ginsburg:

There’s a question I would like to ask you about the State.

Now, if everything worked ideally, it would be the police officer, along with the Miranda warnings, says, would you like to call your consulate.

You could do that if you wish.

If it… if the State has an obligation to give this information under the treaty, but many police officers don’t know anything about any Vienna Convention, do judges, Federal judges, State judges, have an obligation, when they see that an alien defendant is before them, to, on the judge’s own motion, ask the prosecutor has he been told about the Vienna Convention, and if not, the judge would have an obligation to do so?

Mary H. Williams:

I think that would be one way to ensure better compliance with our obligations under the treaty.

The treaty requires competent authorities to provide the information and doesn’t specify exactly who is included and who is not included in that category.

Oregon and other States, along with–

John G. Roberts, Jr.:

So State… you don’t have any problem with State judges being enlisted as officers to execute Federal treaty obligations on behalf of the State Department or someone?

Mary H. Williams:

–I… I was hearing the question, I guess, of whether that would be something that judges could do, and I… and I was responding to… to that part of it.

I don’t think that… that judges are obligated to provide that as a requirement of the treaty.

I think it does fall on the State authorities to provide that information.

Anthony M. Kennedy:

Can you tell us what the State of Oregon has done in this regard–

Mary H. Williams:

This–

Anthony M. Kennedy:

–or other States?

Mary H. Williams:

–We have done a number of things.

In 2000, the Attorney General put together a task force that included consular officials, law enforcement officials, jail managers and, working together, devised some better education tools so that… that there could be more education in terms of the… the competent authorities who need to provide this information.

Anthony M. Kennedy:

Well, how do you think it should… you think the police officer should give it as part of the Miranda warnings, or what’s… what’s your conclusion as to how it should be implemented?

Mary H. Williams:

The State Department has recommended that as soon as it is known that the individual is a foreign national, that the information be given.

I think that it is not–

Anthony M. Kennedy:

Does this mean that the… the desk sergeant in the police station or who?

Mary H. Williams:

–We’ve actually worked with our jail managers to develop a form that could be used as part of the booking process to provide the information.

And the… I mean, I think the more we do the education, probably the better the compliance will be.

But what’s important is that we’re attempting to do that not because the treaty obligates that sort of immediate notification at the risk of not being able to use evidence obtained in a later criminal proceeding.

John Paul Stevens:

Well, it does obligate immediate notification to the defendant, doesn’t it?

Mary H. Williams:

It says without delay that the information should be provided, but that phrase, without delay, when you look at the prefatory materials and how the ICJ has construed it, doesn’t mean immediately.

John Paul Stevens:

Well, but there are two different without delay points, one, when you tell the… the defendant; and secondly, whether or not he wants the consulate notified, and there’s the second delay.

Mary H. Williams:

And the way the ICJ has construed that, after reviewing the materials, is that the phrase, without delay, means the same thing in the three places that it’s used in the treaty.

And so there is… it’s not an immediate requirement.

There is some time that can pass, and in some countries, there may be considerable time.

Anthony M. Kennedy:

So you think it’s… it’s not… it’s not required for police interrogators in the station to include this?

They can… they can wait?

Mary H. Williams:

It is not required under the treaty that the advice be given prior to interrogation.

That’s correct.

Anthony M. Kennedy:

Well, how about during the interrogation?

Mary H. Williams:

At some point in a prolonged interrogation, that right is… that obligation will arise.

Anthony M. Kennedy:

I mean, it seems to me it’s not like rocket science.

You’ve had study groups and everything.

Well, you just tell the policemen give them… give them the advice.

End of case.

Mary H. Williams:

Well, and part of the difficulty is it’s not so easy to give simply a simple advice because it’s not always clear that someone is a foreign national, and even if there’s a suggestion that someone might be–

Anthony M. Kennedy:

Well, that’s easy.

If you are a foreign national, you… that’s easy too.

I don’t… I don’t see why this is so complicated.

Mary H. Williams:

–The other difficulty is that for some foreign nationals, this is not… this is not the case where the detainee controls the contact with consular officials.

We have mandatory notification obligations.

So it’s important to establish what country the individual is from, and some individuals would prefer that the officials not know what country they are from.

David H. Souter:

I mean, all you’ve got to do is–

Anthony M. Kennedy:

That’s their problem.

David H. Souter:

–You ask him what his name is.

Why don’t you ask him whether he’s an American citizen?

If he says no, say what country are you a citizen of.

I mean, I… I don’t see the difficulty of that.

Mary H. Williams:

And certainly we’re hoping to move toward better compliance by moving toward that goal.

But the question in this case–

David H. Souter:

But, I mean, why does it have to be a distant goal?

David H. Souter:

I mean, it seems easy.

Mary H. Williams:

–And I think it gets easier as more cases like this one certainly get the message out.

John G. Roberts, Jr.:

Of course, he doesn’t have to answer that.

Anthony M. Kennedy:

Your answer… your answer doesn’t give me confidence that you’re implementing the treaty.

Mary H. Williams:

But the question is when there is a violation and… and if it’s from lack of education or lack of effort on the State’s part to ensure that people understand the obligation, then does the treaty give the individual the right in a criminal proceeding to have that lawfully obtained evidence kept out of the proceeding.

And so certainly we can make better efforts to improve compliance with what is an obligation that we have under the treaty, but that doesn’t take this Court to suppressing the evidence in the criminal proceeding, and that’s what petitioner has sought from the Court.

John Paul Stevens:

A little while ago you were asked about the judge asking whether or not to ask the defendant if the advice was given him.

And the suggestion was made there’s no duty on the State judge to enforce a Federal treaty, but if it’s a matter of Federal law, why wouldn’t it be a duty to… on the judge to obey Federal law if… if it is part of our Federal requirement?

Mary H. Williams:

I think the question would come down to whether the judge falls in the category of competent authorities under the treaty, and I’m not sure how that would be construed, whether it would be construed to include the judge or if it’s primarily focused on the… the State government officials who would be involved in the… the criminal proceeding.

Unless the Court has further questions, thank you.

John G. Roberts, Jr.:

Thank you, Ms. Williams.

Mr. Thro.

William E. Thro:

Mr. Chief Justice, and may it please the Court–

The Vienna Convention does not create judicially enforceable individual rights.

Nevertheless, if this Court were to hold that it does create individual rights, those treaty claims should not be treated more favorably than constitutional claims.

In Virginia, if a criminal defendant has a Miranda claim or a Fourth Amendment claim and fails to raise it at trial, he may not raise it on collateral review.

The same reasoning should apply with respect to any violation of the Vienna Convention.

There’s no reason to elevate a treaty claim above a Miranda claim or a Fourth Amendment claim.

David H. Souter:

Does… does… would Virginia allow the… a claim of ineffective assistance of counsel to be raised on collateral review for failure of counsel to… to advise the client or take action on the client’s behalf under the Virginia Convention… the Vienna Convention during… during the… the direct proceedings?

William E. Thro:

Yes, Your Honor.

If… if this Court were to announce a new rule that the Vienna Convention confers individual rights, and if counsel failed to raise that at trial, and if that failure constituted ineffective assistance under the standard articulated in Strickland v. Washington, then it would be permissible for that criminal defendant to raise it in his collateral review.

Yes.

And in fact, Mr. Bustillo attempted to raise an ineffective assistance of counsel claim, did raise an ineffective assistance of counsel claim in the State trial court.

That claim was denied, and for whatever reason, he chose not to appeal that to the Virginia Supreme Court.

Stephen G. Breyer:

I have a couple–

John G. Roberts, Jr.:

There was a State collateral review?

William E. Thro:

Yes.

It was on State collateral review, Your Honor.

Stephen G. Breyer:

–thinking of the wrong thing, but it seemed to me I have a couple of opinions here on habeas, State habeas, where they did raise it.

Am I thinking of the other case?

William E. Thro:

It… it was raised in the… in the State trial court, Your Honor.

Stephen G. Breyer:

And… and not on–

William E. Thro:

But… but what was… and the State trial court chose to deny the ineffective assistance of counsel claim on a variety of reasons, and it was chosen… he chose not to appeal that to the Supreme Court of Virginia.

Ruth Bader Ginsburg:

I thought the first time it was raised was on direct appeal by appellate counsel.

William E. Thro:

Appellate counsel on direct appeal attempted to raise it.

He filed a motion requesting a… a remand.

That motion was denied as… as improper.

Then in… once the conviction had been affirmed by the Virginia Court of Appeals, by the Supreme Court of Virginia, and review had been denied by this Court, he went back and filed a collateral review claiming ineffective assistance of counsel for, among other things, failure to raise the Vienna Convention.

The trial court denied that ineffective assistance of counsel claim, and then there was no… and then the decision was made not to pursue that… the appeal of the denial of the ineffective assistance of counsel claim to the Supreme Court of Virginia.

Ruth Bader Ginsburg:

And the reason for the denial?

William E. Thro:

There were several reasons for the denial, one of which was statute of limitations, but the court also noted that even if it had been made within the statute of limitations, there was no merit to it.

The record reflects, Your Honor, that Mr. Bustillo’s retained trial counsel was fully aware of the Vienna Convention claim.

In fact, he was the son of Salvadoran diplomats and was familiar with Vienna Convention issues.

He made a strategic decision that it would be better to… to contain his client and to contain the amount of people talking to his client and, therefore, he should not raise the Vienna Convention issue at trial.

And that is set forth in the affidavit of retained counsel, set forth on pages 318 through 319 of the habeas record in the Fairfax County Circuit Court.

Ruth Bader Ginsburg:

I think that counsel said that the… the people at the consulate… they tend to talk a lot?

William E. Thro:

Yes, he… yes, he did, Your Honor, and having grown up as the son of diplomats, he was obviously familiar with diplomats and their behavior in social settings.

And it was feeling and his strategic view that his client was better off not raising and not contacting the consulate.

But, again, this goes back to the basic point that Justice Kennedy raised earlier.

In America, we give all criminal defendants, regardless of nationality, a lawyer to represent them.

We charge that lawyer with knowing their rights and with vindicating their rights, with making the objections necessary to vindicate Miranda rights, with making the necessary objections with respect to the Fourth Amendment.

The Vienna Convention should be no different.

If this treaty does, in fact, create judicially enforceable individual rights, then the attorneys who are appointed or to represent these people will know about that and will be responsible for vindicating.

That’s how we do things in the American system.

Stephen G. Breyer:

–So then the… then the only question really is this thing that I find metaphysical, and maybe you can explain it.

To start talking about the individual rights that… enforceable, that sounds to me like a… you know, a case that arises under 1983 or something.

But I thought we don’t need that concept.

We all agree that… that this… this is the law of the United States.

It’s self executing.

And the only question is whether the action here violates a provision of the treaty, which is the law of the land.

Stephen G. Breyer:

What else is there?

And… and the only thing I read that the ICJ said, it said, by the way, I’ll tell you what kind of procedural rule you can’t have.

You can’t have a procedural rule that says after you failed to inform him of the right and after he’s unbelievably prejudiced, you say he can’t raise it because he didn’t raise it before he could possibly have found out about the right.

That would be self defeating.

So you can’t have that kind of a rule.

Now, do you agree with that?

William E. Thro:

No.

No, Your Honor.

We–

Stephen G. Breyer:

You explain to me where I… where I–

William E. Thro:

–Well, I will certainly attempt to do so.

I… I think the flaw in the ICJ’s reasoning is failure to recognize that in the United States all criminal defendants are… are given an attorney, and that that attorney is charged with providing constitutionally effective assistance of counsel, meaning being aware of all of the constitutional rights and all of the Federal and State statutory, presumably Federal… Federal treaty rights as well.

There’s no doubt that no Virginia official informed Mr. Bustillo of his opportunity to contact the consulate, but it is also clear that his retained counsel knew of it and chose not to pursue it.

Now, that may or may not be ineffective assistance of counsel, but it does not justify setting aside the State’s procedural bars on collateral review, which would apply for a Miranda violation or a Fourth Amendment violation.

I would also note, Your Honor, that the United States is unique in the world in having the extensive system of collateral review for criminal convictions.

Most of the rest of the world doesn’t have a method of collateral attack.

So if the rest of the world doesn’t have to have a method of collateral attack, it seems rather disingenuous to suggest that the United States has to modify our rules of collateral attack in order to accommodate the treaty.

John G. Roberts, Jr.:

Is… is a defense counsel a competent authority under the treaty for the purposes of notifying the accused?

William E. Thro:

I… I don’t think that… that he is, Your Honor.

However, the… a defense counsel would be, if this Court were to announce a new rule… would be charged with the knowledge and, therefore, could I think correct any error that may have been made by the failure of the local officials or the national officials to inform the criminal defendant of his opportunity to contact the consulate.

John Paul Stevens:

You know, one thing I find difficulty understanding in this case is I just can’t understand how a lawyer thought it would be to his client’s advantage not to consul… not to tell the consul because the facts are quite persuasive that he really was severely prejudiced by the fact he didn’t get all the help he could have gotten.

William E. Thro:

Your… Your Honor, I would refer… I… the only thing in the record is the affidavits of… of the retained counsel.

He made that as a strategic judgment.

Obviously–

John Paul Stevens:

How… how could he make such a judgment?

I just don’t understand it.

You know–

William E. Thro:

–I–

John Paul Stevens:

–Because the prejudice is just stark in… in this case.

It just stands out and… and you just wonder what was going on here.

William E. Thro:

–Well, with all due respect, Your Honor, we would disagree as to whether… as to the extent of the prejudice.

I believe that his affidavit in… both with respect to the Vienna Convention claim and his previous affidavit with respect to just other varieties of ineffective assistance of counsel claims, indicates that he had some concern about the credibility of some these witnesses who were identifying Mr. Sirena.

But in any event, he made that strategic judgment.

The trial court said that it was not ineffective assistance of counsel, and for whatever reason, that judgment was not appealed to the Virginia Supreme Court.

John G. Roberts, Jr.:

You know, that’s kind of a tough position to put the lawyer in.

If he’s not a competent authority for notification purposes and he makes the judgment that, you know, I don’t think it’s going to do any good to notify the consulate, wouldn’t he be better advised not to tell his client about it?

Because if he does, then it’s, I guess, harmless error that the State hasn’t notified him, and if he doesn’t, it’s kind of an ace in the hole.

You see how the trial goes, and at the end say, by the way, the State never notified my client.

William E. Thro:

That’s perhaps so, Your Honor, and that’s one thing… thing that, whatever rule you craft, you need to be very careful of and that is preventing gamesmanship on… on the part of attorneys and criminal defendants so that these Vienna Convention claims are not raised after the fact, which is another reason to… to–

John G. Roberts, Jr.:

It’s kind of like a speedy trial claim.

I mean, if the lawyer knows he has a right to a trial within a certain number of days, and he doesn’t… it’s not his obligation to notify the State.

He just kind of watches the clock and lets the clock run out, and then he has a claim based on that.

Right?

William E. Thro:

–Yes, Your Honor, he would.

John Paul Stevens:

Of course, that might be likely if there had been a history of these claims being successful, but none has ever prevailed.

So I doubt if that would be very… very good to figure you can, you know, save your… your key argument that has no precedent of winning.

William E. Thro:

Yes, Your Honor, and that would obviously… if this Court announced a new rule, then that would perhaps change the thing.

If there are no further questions, thank you.

John G. Roberts, Jr.:

Thank you, Mr. Thro.

Mr. Garre.

Gregory G. Garre:

Thank you, Mr. Chief Justice, and may it please the Court–

The failure to inform a foreign national that his consulate may be notified in the event of his arrest gives rise to a treaty violation between sovereign sates, but it does not give rise to an individually enforceable right.

That follows from the text of the Vienna Convention and its ratification history–

Stephen G. Breyer:

I wonder what that means.

Suppose that the treaty provides that if the individual sends a letter to the counsel, they have to deliver it.

Doesn’t it?

Gregory G. Garre:

–It does, Your Honor.

Stephen G. Breyer:

Well, suppose a sheriff somewhere grabs the letter, keeps it, and the counsel sues him under State property law.

And State property law, they say, entitles me, says the counsel, to this letter.

It’s mine.

Stephen G. Breyer:

It was sent to me.

Now, if that happens to be the interpretation of the judge in the State of X the sheriff can keep the letter, wouldn’t you say that that property law of the State is invalid in light of this provision of the treaty, which is the law of the United States self executing?

Gregory G. Garre:

I think in that situation you would have… you wouldn’t be asserting an individual right under the treaty.

You ultimately–

Stephen G. Breyer:

No.

I just would like an answer to my question.

Gregory G. Garre:

–There could be situations–

Stephen G. Breyer:

No.

I’ve given you the straight facts.

The straight facts are they sue… I don’t have to repeat them.

I want to know under… under my straight facts, wouldn’t you say that… you got the question.

Gregory G. Garre:

–The straight… I think the answer would be is you would have a treaty violation if you had a State law which prevented our Nation from giving effect to our obligations under the Vienna Convention–

Stephen G. Breyer:

But I’m not saying a treaty.

I’m saying there’s a letter and wouldn’t it be the case that the judge would have to say, here, Mr. Sheriff, you take the letter and you hand it to the counsel?

It’s his property.

Gregory G. Garre:

–If they were asserting a cause of action under State property law and that were the result, then yes.

Stephen G. Breyer:

That’s correct.

Gregory G. Garre:

That would be the case, Your Honor.

Stephen G. Breyer:

Okay, fine.

Gregory G. Garre:

But… but–

Stephen G. Breyer:

And now what they’re doing here is they’re saying we have a cause of action.

It’s called habeas corpus.

And we’re asking for a rule of decision in that cause of action, and the rule of decision in this cause of action, just like mine, was in property.

Is the decision… the rule of decision is the rule written into the treaty, just like in the property case, and you cannot do anything that contravenes it though, of course, you can argue about the content of that rule of decision.

Gregory G. Garre:

–In these… in these two cases… one you have on Federal habeas, one you had on direct appeal… individuals are seeking to affirmatively invoke rights that they claim that they can enforce under the Vienna Convention, and we don’t think that the Vienna Convention confers those individual rights.

If… if I could try to explain the… the… what you referred to as a metaphysical question earlier.

We agree that the Vienna Convention, as a self executing treaty, is part of our Federal law.

Samuel A. Alito, Jr.:

But is there a difference between the rights that could be asserted by the consul or a consulate official and the rights that could be asserted by a criminal defendant?

Gregory G. Garre:

I don’t think so, Justice Alito.

The… the treaty has an enforcement mechanism, and that’s… that’s an important thing to keep in mind.

Gregory G. Garre:

The… the signatories to this treaty permitted for a judicial enforcement mechanism.

Samuel A. Alito, Jr.:

And if a consulate official knew that a national of that country was being detained and wanted access to that person and that was being denied by… by the State officials, there would be no remedy in Federal court?

The consulate… the foreign country could not obtain… could not get Federal enforcement of that right to get access?

Gregory G. Garre:

That’s right, Justice Alito.

The remedy would be the traditional remedy for enforcement of treaties, diplomatic repercussions, diplomatic protests, and that happens all the time.

That happens in this country where a… where consulates complain to the United States State Department.

It happens overseas where the State Department complains about the treatment of American citizens.

This… this–

John G. Roberts, Jr.:

Are there any countries that recognize individually enforceable rights under this convention overseas on behalf of American citizens?

Gregory G. Garre:

–No, Your Honor, and what… the petitioners and their amici here are asking this Court to be the first court to recognize an individually enforceable right under this treaty.

Antonin Scalia:

What about that Australian case that was mentioned, I believe one case where at least–

Gregory G. Garre:

Well, Your Honor–

Antonin Scalia:

–evidence was excluded?

That would have been a–

Gregory G. Garre:

–There… there is Australian authority going directly to the contrary.

It’s… it’s the R. v. Abbrederis case which we cite, which… which recognizes that the article 36 is individually enforceable.

The… the other cases that are referred to by some of petitioners’ amici are… are addressed at length in the Criminal Justice Legal Foundation amicus brief.

And they explain that in those situations, there… first of all, the cases are a little bit vague as to which provisions they’re purporting to enforce.

But, second of all, there are domestic statutes which we think that the correct reading of the cases is in those cases they were giving effect to the domestic statutes.

There’s certainly no… no unambiguous example that–

Stephen G. Breyer:

I imagine there’s not… there’s some little authority both ways.

To put it in my perhaps… I know you disagree with this way of thinking about it.

But I’m… I’m thinking about this article 36 and thinking that you’re reading it as if it said, inform the individual, but if you don’t, he can’t do anything about it.

And the other way is to read the silence as if it said, inform the individual, but if you don’t, he can do something about it.

We’re not saying what.

Okay.

Now, between those two interpretations, we have the ICJ picking interpretation two and rejecting interpretation one in, I grant you, a different case.

But I guess since a lot of these amicus briefs tell us throughout history, a long history, we’ve tried to follow ICJ interpretations of treaties to which we are parties.

Why… it’s all up to us, but we’ve tried to.

Why… why should we not, given the two possible interpretations… they choose one.

Stephen G. Breyer:

Why should we not choose to follow theirs here?

Gregory G. Garre:

–Because, to be blunt, the ICJ decision is wrong.

This Court gives respectful consideration to the decisions of the ICJ and other international tribunals, but it’s certainly not bound by those decisions.

This Court should look carefully to the text of the treaty itself, to the ratification history, to the consistent interpretation of the executive branch, and to implementing practice in other states.

At best, they… petitioners and their amici have suggested that there’s some ambiguity in… in two states, Australia and Great Britain.

There are more than 160 contracting states to this… to this treaty.

Stephen G. Breyer:

Well, then you’re going back to putting weight on the absence of authority.

In those contracting states, most of which I guess are civil system states, and in civil systems, you’ll have magistrates who do take this kind of thing into account, but you won’t find a case on it.

So… so–

Gregory G. Garre:

What you don’t–

Stephen G. Breyer:

–are there authorities in these other states to the contrary?

I’m surprised if there is.

Gregory G. Garre:

–There are authorities that we’ve cited where courts have rejected the notion that article 36 creates individually enforceable rights, in Canada and Australia, and there’s a case in Germany where they refused to provide for a suppression remedy.

So there are authorities going the other way.

The manner in which this treaty is implemented by the State Department overseas and by the State Department here is to provide for enforcement through the traditional means.

This Court, as long back as the Head Money Cases, said that the traditional… treaties are compacts between states.

The traditional means of enforcing those obligations is through diplomatic repercussions.

Anthony M. Kennedy:

In your view, just as a practical matter, what we have here, how… how should the States enforce this obligation?

Gregory G. Garre:

Well, the States should enforce it generally by giving information to the detainee at the point in time when they realize… determine that he’s a foreign national.

The State Department is engaged in extensive–

Anthony M. Kennedy:

Do they have any obligation to inquire whether he is?

And… and can you be more specific?

Should it happen–

Gregory G. Garre:

–Generally–

Anthony M. Kennedy:

–when you first give him the Miranda warnings, or tell me how you think it should work?

Gregory G. Garre:

–Generally it happens during the arrest process.

If… if, during the course of questioning, they determine that a detainee or arrestee is a foreign national, then at that point in time, generally they would provide consular notification.

The State–

Anthony M. Kennedy:

Do you think they have the affirmative obligation to ask him if he is a foreign national?

Gregory G. Garre:

–The State Department advises law enforcement officers at the Federal and State and local level that ordinarily they should make that determination.

John G. Roberts, Jr.:

If they don’t… if they can’t ask him… I mean, I assume many foreign nationals are detained fairly close to the border, and if you start saying, well, my first question is, are you a citizen or not, you’ve got to give Miranda warnings first saying you don’t have to answer any question that might incriminate you.

Gregory G. Garre:

That’s right.

John G. Roberts, Jr.:

It’s kind of a catch 22.

Gregory G. Garre:

That’s right, Mr. Chief Justice.

And many foreign nationals are reluctant to provide information about their citizenship because they fear that that could result in other legal jeopardy.

Importantly, Justice Kennedy, article 36 is in no way an interrogation right.

It has no connection to interrogation.

The International Court of Justice in the Avena decision, at page… at paragraph 87, specifically made that point, that this was not related to interrogation.

In many European countries, detainees who are arrested not only can’t have access to consular officials during questioning, they don’t even have access to lawyers during questioning.

So… so this–

Anthony M. Kennedy:

Well, I thought you indicated that you advise the States that they do have to advise him of this right during the booking process or the interrogation.

Gregory G. Garre:

–Well, when they… when they learn that the person is a foreign national.

Oftentimes, that could happen… that could happen during questioning, although oftentimes it doesn’t.

It could happen at booking.

It could happen later in the process.

That’s what the State Department advises law enforcement officials.

The State Department has engaged in extensive efforts to ensure compliance with this treaty in order to abide by our international obligations.

We… we have sent information to State and local law enforcement officers how to comply with this treaty.

There have been training videos.

There have been cards similar to Miranda cards.

More than 600,000 of those cards have been sent out to local officials, and… and the initial indications that we’ve received is that these efforts are working.

In fact, these indicate… these efforts are… are outlined in the Hardy affidavit, which is in volume II of the Counter Memorial and Avena decision, which we’ve offered to lodge with the Court.

But… but we… the feedback we’ve gotten is that in some offices, they’re being overwhelmed by notifications.

So the United States is seeking to abide by its treaty obligations.

Those efforts are working.

This–

Ruth Bader Ginsburg:

Has it worked the other way around when a young American citizen is detained in… in a jail someplace abroad, and has the United States ever then… what efforts have been made?

Gregory G. Garre:

–Your Honor, the efforts that we undertake are diplomatic efforts.

We do not go into foreign courts and assert or suggest that American citizens should go into foreign courts and assert a right to individually enforce this treaty either through suppression or any of the other remedies that have been suggested.

Ruth Bader Ginsburg:

Has it worked anyplace?

Ruth Bader Ginsburg:

Take Mexico, Turkey, any country you’d like.

Gregory G. Garre:

Yes, Your Honor. In fact, during the 1980’s the United States complained to Mexico about the fact that American citizens had not received consular notification, and through the result of those diplomatic discourses, they negotiated an… a agreement whereby American citizens were brought back to the United States for custody.

But significantly there, the… the United States didn’t take the position that those convictions were unlawful or could be set aside under the Vienna Convention.

They simply, through diplomatic discourse, the traditional means of enforcing a treaty, provided for the… the transfer of these citizens back to the United States to serve out their custody.

The… the traditional rule in international law is that treaties don’t create individually enforceable rights.

Many treaties, by their terms, do expressly contemplate private enforcement in domestic courts.

Look at article 28 of the Warsaw Convention.

Look at article 2, subsection 3 of the International Covenant on Civil and Political Rights.

These treaties do expressly contemplate that theirs… their provisions will be individually enforceable in the domestic courts.

It would have been–

David H. Souter:

When you say they… they contemplate it, how do they express that contemplation?

I mean, are… are there magic words that diplomats understand or… or what?

Gregory G. Garre:

–Your Honor, they refer to rights that individuals can assert or should be able to assert in judicial courts, in the domestic courts.

David H. Souter:

But they… they provide expressly that these are rights that may be asserted individually in national courts?

Gregory G. Garre:

There… Your Honor, there are varying degrees of specificity, but yes, they… in some cases they do provide for that explicitly.

David H. Souter:

But they… they go beyond the reference to rights as… as in article 36.

Gregory G. Garre:

Yes.

They… they refer to domestic enforcement.

Stephen G. Breyer:

Do they, in all those property cases, you know, from like the early part of this republic where property law was determined in accordance with… you know all those cases that are cited.

Gregory G. Garre:

Right.

Stephen G. Breyer:

In those treaties where the courts then looked to the treaty to help decide who owned what property, they used it as a rule of decision.

Do those cases… treaties all use the word individually enforceable rights?

Gregory G. Garre:

They didn’t, Your Honor, but those treaties, as we explain in our brief, are dealing with commercial relations, property rights, and… and are almost entirely dealing with individuals and how they should be treated in foreign states, are much more amenable to a construction that they create individually enforceable rights.

And the Vienna Convention, which after all is a convention about the quintessential matter of interstate relations, consular functions between states… we don’t think that that treaty can be interpreted to confer individually enforceable rights.

Stephen G. Breyer:

Where does this term come from as applied to a rule of decision?

I mean, when somebody is arguing that the treaty should apply a rule of decision in a case brought under some other cause of action, what’s the best thing I could read?

I’m not an expert.

Gregory G. Garre:

Your Honor–

Stephen G. Breyer:

You say the way to think about that–

Gregory G. Garre:

–read–

Stephen G. Breyer:

–is the, quote, individually enforceable rights.

Gregory G. Garre:

–We would suggest read the treaty.

It’s… it’s… we agree with you that you get back to the treaty and you have to make the determination that the signatory states to the treaty intended for private enforcement in domestic courts.

The signatory states to this treaty provided for a very limited judicial enforcement mechanism, only contracting states that join the optional protocol and only in the ICJ.

It would have been an extraordinary thing for those contracting states that so carefully limited that remedy to… to subject themselves to suit in their own courts to any number of foreign nationals who went abroad into their countries.

David H. Souter:

Well, I… I would agree there, but we’re not… this… this isn’t a case about subjecting them to suit.

Gregory G. Garre:

What you… what you… what they’re asking you to do, Your Honor, is to say that this treaty is individually enforceable in our courts.

David H. Souter:

Well, yes, but… but that is… that’s not equivalent to saying that it’s… it is subjecting the United States to suit.

Gregory G. Garre:

May I answer the question?

John G. Roberts, Jr.:

Yes.

Gregory G. Garre:

It is, Your Honor, insofar as if you think it in waiver of sovereign immunity terms.

A state may waive its sovereign immunities from some types of claims, but not other types of claims.

And what they’re claiming here is that these claims are enforceable, and we think that they are incorrect.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Stancil, you have 4 minutes remaining.

Mark T. Stancil:

Thank you.

I’d like to first briefly address two points on behalf of Mr. Sanchez Llamas.

First, with… with respect to him, the question is how to give full effect to the treaty in the context of custodial interrogation, and his position is that suppression is necessary to give full effect.

And we need look no further than the fact that the custodial… that the remedies that are currently afforded in a context of custodial interrogation are ineffective.

And secondly, admitting evidence encourages violations, and that’sl been the… the result that’s been a constant pattern and practice of violations.

If I could switch back to Mr. Bustillo’s case, and I’d like to address what Mr. Garre just said, which is that there’s a presumption or that… that treaties don’t create individually enforceable rights.

Every decision of this Court is unambiguously clear.

Where you have a treaty that becomes part of the domestic law… here it is.

Where that treaty creates rights… here the treaty says his rights.

And third and critically, where you have a cause of action to enforce those rights, it is judicially enforceable as a matter of domestic law.

Regardless of the international dimension of the treaty, as a matter of domestic law, it is enforceable.

John G. Roberts, Jr.:

But it refers to his rights, to make it clear that the consular office does not have the right to contact him in the situations where he would prefer not to be contacted by his consul.

Mark T. Stancil:

I disagree, Your Honor.

If… if you look at the treaty’s text, it says, you shall notify the person affected of his rights.

It’s referring to the foreign national specifically.

Mark T. Stancil:

And twice more, article 36(2) talks about the rights that are created.

These all flow directly to the foreign national.

He decides whether to exercise them.

This is a classic rights creating piece of… it’s not a… it’s not a statute, but it’s treated on par.

And if you look at the–

Antonin Scalia:

I… I thought you said the third condition was creation of a cause of action.

Mark T. Stancil:

–Availability of a cause of action.

Here–

Antonin Scalia:

Where… where is that in this statute?

Mark T. Stancil:

–The Virginia habeas statute provides a cause of action if you are held in violation of Federal law, and in Sanchez Llamas, the cause of action is the criminal prosecution.

That’s what the Court did in Rauscher where it allowed him to–

Antonin Scalia:

You meant the statute has to create a cause of action.

Mark T. Stancil:

–The cause of action, just like 1983, allows–

Antonin Scalia:

I mean, the… the treaty has to create a cause of action.

Mark T. Stancil:

–That’s not correct.

Just like 1983 has to create a cause of action to vindicate Federal rights, here–

John G. Roberts, Jr.:

Well, 1983 is a good example.

If you have a… a treaty between a State and the Federal Government, a Spending Clause provision, that says you’ve got to spend the money this way, give certain rights to the individuals, we don’t always automatically hold that the individuals have enforceable rights even under 1983.

Mark T. Stancil:

–Not automatically, but if you have a statute that said his rights and refers rights and makes it his obligation and his decision whether to invoke them, it would be classic rights creating.

If I–

John G. Roberts, Jr.:

It said his rights in Gonzaga v. Doe, which dealt with the student privacy rights act, and we held… and the… we… the Court held that that was… did not give rise to individually enforceable rights.

Mark T. Stancil:

–I would… I would compare the language of article 36(2) to any of the rights cases this Court has decided.

If I could, in my remaining minute, describe why… and this goes to the heart of what we were talking about with the procedural bar.

If the question is, as Justice Breyer put it, whether pushing these claims to ineffective assistance is self defeating, we have ample evidence here that it is.

The State says, well, it may or may not be ineffective assistance.

The State court said it wasn’t ineffective assistance.

That’s because trial counsel doesn’t have unique experience and knowledge necessary to make these decisions.

That’s why the treaty expressly puts it in the hands of the foreign national to make these decisions, not the lawyer.

And, with respect, if… if… the State has asserted that we haven’t raised an ineffective assistance claim.

We did… we did recharacterize in the Virginia Supreme Court, on pages… page 203, note 4 of the joint appendix, that if you wanted to flip all this on its head, you could certainly… you would certainly have to conclude that he created… that he committed ineffective assistance of counsel.

John G. Roberts, Jr.:

Thank you, Mr. Stancil.

Mark T. Stancil:

Thank you.

John G. Roberts, Jr.:

The case is submitted.