 have the power to order the states what to do, even if he is implementing an international obligation. Mexico then takes this back to the ICJ in a kind of a bizarre proceeding because there's no appeal right to the ICJ. What they do is, they go with a narrow provision that requests an interpretation saying that the United States must have misunderstood the original ruling because if it had properly understood the original ruling, its Supreme Court would have obviously gotten it right.
I, not surprisingly, said—I argued on behalf of the United States—no, no, no. We completely agree with the original ruling, we're just having difficulty internally getting this done. At the same time, Texas was proceeding with the execution of the lead Mexican because they now had an order from the Supreme Court saying they could do it. I then go—This was rather amusing—to Secretary Rice and say, "In addition to defending ourselves before the International Court of Justice, we really need to try to stop this execution. Even the Supreme Court acknowledges that we have an international law obligation not to allow this person to be executed. The Court may have said that the President can't order Texas what to do, but that doesn't mean that we still don't have an obligation. So I'd like to propose, Madam Secretary, that you and the Attorney General write a letter to Governor [Rick] Perry in Texas, asking the Governor not to execute Mr. [Jose] Medellin so that we can vindicate our international legal obligations."
She arched her eyebrow at me and said, "John, you've already convinced the President of the United States to issue this order. He's now been reversed by the Supreme Court. That's about as far as we can go."
I said, "I know, I understand. But we still have an international law obligation and we need to do the most we can. This is an obligation of the national government; you're the Secretary of State. We have a state of the union that is going to violate international law."
She said, "Let me think about it." Steve Hadley then hosts a meeting in the Situation Room on this issue. I drive over with her, arguing all the way about this. We have the meeting. Steve Hadley says, "Texas is about to execute this guy. We've tried to order them that they can't do it. What are we going to do now, Madam Secretary?"
"Well, I'm prepared to write a letter to the Governor of Texas, provided that the Attorney General will sign it with me." So they did. I'm not sure if the Attorney General was prepared to kill me or not.
He was at this meeting?
He was at the meeting too. So we wrote the letter. It was signed by both the Secretary of State and the Attorney General. We didn't think we were going to get a response. In fact, Governor Perry did write back a polite letter and said that we understand that you in Washington think there's an international obligation, but we here in Texas have a similar obligation to protect our people. They then went ahead and executed Mr. Medellin.
The Avena case was decided at the International Court of Justice at The Hague on my last day in office. People said to me through the grapevine—I don't know if this is true or not—that they had it come down on my last day in office so that I could come because they knew I had worked on this very hard. It was Martin Luther King Day; I wasn't even going to be in the office that day. I was going to leave on a Friday, about two weeks before we learned that this was going to come down. First I thought, Who needs one more trip to The Hague in coach class on a holiday to be whacked by the International Court of Justice after Texas has executed Medellin? We'll just let the Ambassador go do it. Then I thought, I have seen this case through from the beginning to the end. I still think we're right on the law, that we accept our obligations here. I finally thought, What lawyer is not going to want to be there in the Peace Palace?
I agreed to do this, give up my final weekend and holiday. The one thing I said I'm not going to do—because I'm going to have to fly back on Inauguration Day, and since I would not be a government official at that point anymore—I'm not going to get stranded in The Hague for the rest of my life. So I got approval from Greg Craig that extended me in office for one more day. Harold Koh likes to joke that I was actually the first legal advisor in the Obama administration.
I flew to The Hague. The judgment of the Court was that they did agree, as a legal matter with the United States, that there was nothing to interpret, that the United States accepted its legal obligations, but because Texas had executed Mr. Medellin, that we had violated the original order. That, of course, was all the headlines. "World Court: U.S. Violates International Law."
As one quick follow-up, were you in contact with the attorney general, with Ted Cruz in Texas, back and forth?
My staff went down a couple of times to Texas to work with his staff to see if there was anything that we could work out in any kind of reviews, something that could be treated as a review. Even though it wasn't an appeal, that we could say that it was a review, so we could go to the Court to say we have more or less vindicated this right, with the clemency reviews, things like that. There were a couple of things that we had discussed, but we were never able to work out something that would be satisfactory to the Court. I think that's a little-known story. It's pretty far down in the weeds, but in terms of the Bush administration's commitment to international law when it is politically difficult to do so, it's a great example.
This administration, in fact, I believe has done much less. Despite roaring into office saying that they were going to take international law very seriously, they could have, to be consistent with the rhetoric, immediately put forward legislation, particularly when they had overwhelming majorities in both the House and the Senate. Even if they weren't going to push it as a matter of a priority, they could have at least put forward a bill. Then you could at least say we're proposing this. They never did that. I don't know if they could have gotten it through or not. Possibly they could have gotten it through, but they didn't even try.
Finally, in their third year in office, Senator [Patrick] Leahy, on his own, introduces a bill that the administration then goes up and testifies. Leahy got me to go testify in favor of their bill, to explain why it is that the Bush administration had been in favor of compliance. I've always found it somewhat annoying that here was an example of the President making a personal decision to comply with our international law obligations in an extremely politically difficult way, involving his own state of Texas, and getting zero credit for it. This administration, having beaten us over the head on international law doing absolutely nothing to comply, and yet everybody around the world still thinks that they're great believers and that we were not.
To this day when I see the President, this is one thing he raises with me. "How are those Mexicans, John?"
I wanted to ask, you had listed a number of routine things, responsibilities that the office has, including treaty negotiations. One is appearing before the United Nations. Did you do those, and do you have any specific recollections of what you were doing or stories to tell about your experience in these areas?
I do. They were good examples. I don't know if they were too far down in the weeds. There were certainly significant events. Let me take treaties first. The legal advisor is responsible for the negotiation, interpretation, and ratification of treaties. We had a remarkably good treaty record. I think you've seen it in there [motions toward briefing material].
Ninety treaties just in my last two years; 163 treaties over the Bush administration's eight years. The last two years that I was in office, we got 90 treaties through the Senate. That's more treaties than at any point in American history, and this is for an administration that supposedly doesn't believe in international law. So we worked very hard on treaties.
I'll give you two vignettes. They're probably not relevant to history; one is, one isn't.
The second example shows the perception. So one set of treaties that I personally testified in favor of were a bunch of law of war treaties, some involving blinding lasers, incendiary devices, explosive remnants of war, The Hague 1954 cultural property convention. We worked very hard to get these through. I went and testified. The Senate approved them. We had the ratification package waiting on the President's desk. It did not get done before President Bush left office, so it was waiting for President Obama. He then ratified them about ten days after he got into office. All the blogs go wild. Finally, a President that believes in international law and treaties. That drove me crazy.
The successful example—and this was actually written up, and Secretary Rice would say this was a small success but an important success for the administration, where she had some personal involvement—was the negotiation of the Third Protocol to the Geneva Conventions, which created a new symbol, the red crystal—It's actually a red diamond—that allows countries that use neither the red cross or the red crescent as the symbol of their humanitarian organizations to become members of the International Federation of Red Cross and Red Crescent Societies. Oddly, the way the treaties were