IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION



HABEAS CORPUS

CIVIL ACTION No. 97-CA-480

CESAR ROBERTO FIERRO,

Petitioner,

vs.

GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division

Respondent

MOTION FOR LEAVE TO PRESENT STATEMENT OF AMICI CURIAE IN SUPPORT OF PETITION FOR A WRIT OF HABEAS CORPUS AND STATEMENT OF AMICI CURIAE IN SUPPORT OF HABEAS CORPUS RELIEF


COME NOW, Amnesty International, Human Rights Watch, Minnesota Advocates for Human Rights, the Lawyers' Committee for Civil Rights Under Law of Texas, Immigrant and Refugee Rights Project, and the Extradition and Human Rights Committee of the American Branch of the International Law Association, (hereinafter "Amici Curiae"), by and through their attorneys, to respectfully submit this motion for leave to present their statement of Amici Curiae in support of the petition for a writ of habeas corpus submitted by Cesar Roberto Fierro (hereinafter "Fierro"), and this statement of Amici Curiae in support of habeas corpus relief. As grounds therefore, the Amici Curiae respectfully submit as follows:

Amici Curiae consist of several human rights organizations dedicated to promoting compliance with norms pertaining to the respect of international law and human rights. In this case, they are concerned with promoting respect for due process and fundamental fairness in the criminal process, particularly in the context of capital murder cases.

Amnesty International ("AI") is a nonprofit organization that impartially promotes the human rights of individuals throughout the world. AI's mandate is: (1) to promote general awareness of international human rights standards; and (2) to oppose specific violations of human rights. Founded in 1961, today AI has more than one million subscribers and donors in over 160 countries; 34 of them in areas outside Western Europe and North America, and more than 5,000 local AI groups. In furtherance of its mandate, AI has a vital interest in ensuring that all nations (including individual States and provinces) comply with their international treaty obligations to respect the fundamental human rights of all people.

Human Rights Watch is a non-partisan, non-governmental human rights organization based in New York. Human Rights Watch investigates, documents, and publicizes systematic violations of human rights throughout the world. It has conducted fact-finding investigations in scores of countries. Through its Americas Division (known formerly as Americas Watch), Human Rights Watch has documented abuses in Mexico and the United States, and has intervened as an amicus curiae before United States courts and international judicial bodies, urging the application of internationally recognized standards of human rights protection.

The Lawyers' Committee for Civil Rights Under Law of Texas, Immigrant and Refugee Rights Project was founded in 1991. It is part of a national network of nonpartisan, nonprofit offices established at the request of President John F. Kennedy to provide legal services to victims of discrimination. It is committed to attaining and preserving civil rights for immigrants and refugees by engaging in impact and class action litigation.

Minnesota Advocates for Human Rights is a volunteer-based organization that works on projects supporting the protection of internationally recognized human rights in all countries. Minnesota Advocates works to protect the human rights of refugees, torture victims, political dissidents, persons sentenced to death, and oppressed ethnic groups. To accomplish these goals, Minnesota Advocates investigates and exposes human rights violations throughout the world, educates the public about human rights issues, promotes the universal acceptance of international standards, and trains and assists groups that protect human rights. Minnesota Advocates has appeared as amicus curiae in a number of U.S. courts and international tribunals.

The Extradition and Human Rights Committee of the American Branch of the International Law Association (hereinafter "Extradition Committee") is comprised of individuals from the academic, public, and private sectors who have extensive experience in the field of international law and, specifically, human rights law. (1)

Members of the Extradition Committee have taught subjects such as international law, human rights law, and foreign relations law and have written extensively in these fields. Furthermore, members of the Extradition Committee have participated in human rights litigation throughout the United States. The Extradition Committee has a longstanding interest in the development of international law, particularly in extradition and related matters. It is also committed to the protection of fundamental human rights.

Amici Curiae are deeply concerned with the numerous violations of international law and human rights that permeate the Fierro litigation. International law requires states to respect and observe due process and fundamental fairness in criminal proceedings, particularly in cases involving capital punishment. The use of perjured testimony to protect the admissibility of a confession acquired through torture would make a mockery of the basic human rights recognized by international law. While acknowledging that an act of torture per se is not one of the grounds for Fierro's petition for a writ of habeas corpus, Amici respectfully submit that the alleged use of torture in this case as well as the numerous efforts to suppress this information provide an indispensable context for the determination of Fierro's due process claims by this Court.

The Statement of Amici Curiae in Support of Habeas Corpus Relief raises several issues that may not be addressed by either party in their submissions to this Court. First, the use of perjured testimony to protect the admissibility of a confession acquired through torture is a violation of international law. Second, this international prohibition, as set forth in U.S. treaty obligations and recognized in customary international law, is directly applicable in the United States and must be enforced by U.S. courts. These issues are relevant to the disposition of this case.

For these reasons, Amici Curiae respectfully submit this motion and attached statement to the Court in support of Fierro's petition for habeas corpus relief.

Dated: May 30, 2000



STATEMENT OF AMICI CURIAE IN SUPPORT OF HABEAS CORPUS RELIEF

The Amici Curiae -- organizations dedicated to the protection of human rights -- present this statement in support of Cesar Roberto Fierro's (hereinafter "Fierro") pending petition for a writ of habeas corpus. This statement is submitted to advocate a remedy for the documented violations of international law and human rights evinced in this case. International law requires states to respect and observe due process and fundamental fairness in criminal proceedings, particularly in cases involving capital punishment.

This Statement of Amici Curiae addresses two issues. First, the use of perjured testimony to protect the admissibility of a confession acquired through torture is a violation of international law. Second, this international prohibition, as set forth in U.S. treaty obligations and recognized in customary international law, is directly applicable in the United States and must be enforced by U.S. courts.



STATEMENT OF FACTS

In July 1979, Fierro was implicated in the murder of an El Paso, Texas taxi driver. Fierro v. State of Texas, 706 S.W. 2d 310 (1986). At the time of his interrogation, Fierro was in the El Paso county jail on an unrelated matter. According to Fierro, Detective Al Medrano (hereinafter "Medrano") informed him that his parents were being held by the Juarez Police and would not be released until he confessed to the murder. Id. at 316. Fierro also alleged that Medrano showed him documents that could only have been seized from his parents' home in Mexico -- documentary proof that the Juarez Police had been to his parents' home and were cooperating with Medrano. Id. At the time, the Juarez Police were well-known for their use of torture on detained individuals. See Brief Amicus Curiae of the United Mexican States in Support of Petition for Writ of Certiorari, Fierro v. Lynaugh, (U.S. Supreme Court, March 21, 2000), at 6. Fierro subsequently confessed. The Juarez Police released Fierro's parents only after being notified of Fierro's confession to the El Paso Police.

In 1980, Fierro was convicted of capital murder and sentenced to death. His conviction was based, in part, upon his alleged confession. Fierro challenged his conviction in both state and federal court, arguing that it had been coerced through the acts of Medrano and the Juarez Police. At the suppression hearing and at trial, Medrano denied that he had cooperated with the Juarez Police or had otherwise coerced a confession from Fierro. Ex Parte Fierro, 934 S.W.2d 370, 371 (Tex. Crim. App. 1996). This testimony was relied upon in numerous post-conviction proceedings. See Fierro v. Johnson, 197 F.3d 147, 149-150 (5th Cir. 1999).

Subsequent developments have challenged the validity of the Fierro confession and the Medrano testimony. According to the findings of facts issued by an El Paso district court judge and subsequently adopted by the Texas Court of Criminal Appeals, Medrano, in fact, had cooperated with the Juarez Police. Ex Parte Fierro, 934 S.W.2d at 371. Medrano was aware that Fierro's family had been taken into custody by the Juarez Police with the intent of holding them in order to coerce a confession from Fierro. Id. In addition, Medrano had presented false testimony regarding the nature and scope of the cooperation between the El Paso Police and the Juarez Police. Id. Despite these findings, the Texas Court of Criminal Appeals refused to grant a new trial, arguing that these constitutional violations were "harmless error." Id. at 372.

In 1997, the Fifth Circuit Court of Appeals made a preliminary determination that these constitutional violations were not "harmless error." In re Fierro, No. 97-00498 (5th Cir. 1997). Accordingly, it has authorized Fierro to challenge his conviction in the federal courts by filing a successive habeas corpus petition.



ARGUMENT

The Fierro conviction is based upon a crumbling foundation of due process violations - the use of torture, a confession acquired through torture, and the use of perjured testimony to protect the admissibility of a confession acquired through torture. International law requires states to respect and observe due process and fundamental fairness in criminal proceedings, particularly in cases involving capital punishment. Accordingly, the use of perjured testimony to protect the admissibility of a confession acquired through torture is a clear violation of international law.

Representing both treaty obligations and customary international law, these rules of international law are binding in the United States and must be enforced by U.S. courts. In addition, federal law must be interpreted in a manner that does not violate international law. Finally, U.S. courts should consider international and comparative norms when reviewing issues of due process and fundamental fairness.

I.

THE USE OF PERJURED TESTIMONY TO PROTECT THE ADMISSIBILITY OF A CONFESSION ACQUIRED THROUGH TORTURE IS A VIOLATION OF INTERNATIONAL LAW

There are three principal sources of international law: treaties, customary international law, and rules derived from general principles common to the major legal systems of the world.Restatement (Third) of the Foreign Relations Law of the United States § 102(1) (1987) (hereinafter "Restatement (Third)").

International law requires states to respect due process and fundamental fairness in criminal proceedings, particularly in cases involving capital punishment. These principles are codified in multilateral and regional instruments, several of which have been ratified by the United States. They are also expressed in numerous other forms of state practice, including the decisions of international tribunals, the statements of international organizations, and in national legislation. The use of perjured testimony to protect the admissibility of a confession acquired through torture is inconsistent with these sources of international law.

A. The Use of Statements Acquired Through Torture as Evidence in Criminal Proceedings Is a Violation of International Law

Apart from genocide, there are few international norms more universal than the prohibition against torture. (2) In addition, the use of statements acquired through torture as evidence in any proceedings is also a violation of international law. (3) These rules are codified in several multilateral and regional instruments, including treaties ratified by the United States. They are also expressed in numerous other forms of state practice, including the decisions of international tribunals, the statements of international organizations, and in national legislation.

In 1984, the prohibition against torture was formally codified in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter "Convention against Torture"). Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp (No. 51) at 197, U.N. Doc. A/39/51 (1984). The United States ratified the Convention against Torture in 1994. (4) The Convention against Torture specifically prohibits the use of any statement made as a result of torture. Article 15 provides:

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

To ensure that the obligations set forth in the Convention against Torture are adhered to by the international community, the Committee against Torture was established to facilitate implementation of the agreement. In October 1999, the United States Government issued its Initial Report to the Committee against Torture as required by Article 19 of the Convention against Torture. In its report, the United States reaffirmed its commitment to Article 15.

Current United States law contains stringent rules regarding the exclusion of coerced statements and the inadmissibility of illegally obtained evidence in criminal trials. These rules are stricter than article 15 of the Convention requires. In practice, they function as a strong disincentive to abusive treatment by law enforcement officers during interrogations.

Committee against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: United States of America (Oct. 15, 1999), U.N. Doc. CAT/C/28/Add.5 (2000), at 62. If a statement is obtained by methods which constitute torture, the United States Government indicated that a trial court "must exclude the statement to prevent a violation of the Fifth Amendment. Hence, a statement made under coercion as the result of torture likely will be deemed inadmissible as evidence in a criminal proceeding . . . ." Id.

The International Covenant on Civil and Political Rights (hereinafter "Covenant on Civil and Political Rights") also prohibits the use of torture as well as the use of statements acquired through torture. G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171. The United States ratified the Covenant on Civil and Political Rights in 1992. Article 7 of the Covenant on Civil and Political Rights provides that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The Human Rights Committee, which was established to monitor compliance with the Covenant on Civil and Political Rights, has interpreted Article 7 to prohibit the use of statements obtained through torture. "It is important for the discouragement of violations under article 7 that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment." Human Rights Committee, General Comment No. 20, U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994). The Human Rights Committee has also indicated that such acts may give rise to a violation of Article 14(3)(g), which provides that no one shall "be compelled to testify against himself or to confess guilt." Miguel Angel Estrellas v. Uruguay, Communication No. 74/1980, U.N. Doc. Supp. No. 40 (A/38/40) at 150 (1984), at para. 10.

Regional agreements also prohibit the use of torture as well as statements extracted through the use of torture. For example, Article 5 of the American Convention on Human Rights provides that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment." American Convention on Human Rights, O.A.S. Official Records OEA/Ser. K/VXI/1.1, Doc. 65, Rev. 1, Corr. 1 (1970), at art. 5(2). The United States has signed the American Convention on Human Rights. In addition, Article 8(3) states that "[a] confession of guilt by the accused shall be valid only if it is made without coercion of any kind." The Inter-American Commission on Human Rights (hereinafter "Inter-American Commission"), which is authorized to review compliance with the American Convention on Human Rights, has affirmed this prohibition on several occasions. In Case 9850, for example, the Inter-American Commission held that the principles of due process and judicial protection set forth in Article 8(3) were violated where a confession was extracted from the petitioner through the use of torture. Inter-American Commission on Human Rights, Case 9850, Report No. 74/90 (1990). See also European Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. 5, at art. 3.

In additional to international and regional practice, there is also a general practice among states to exclude statements acquired through torture from all criminal proceedings. For example, Mexico's Federal Act to Prevent and Punish Torture provides "[n]o confession or information obtained by torture may be invoked as evidence." Ley Federal Para Prevenir y Sancioner la Tortura, (27 Dec. 1991), at art. 8. In England, Section 76 of the Police and Criminal Evidence Act provides that a court shall not allow a confession to be given in evidence unless the prosecution proves beyond a reasonable doubt that the confession was not obtained by oppression of the person who made it or was made in circumstances that render it unreliable. Police and Criminal Evidence Act (1984), Section 76(2).

B. The Use of Perjured Testimony to Protect the Admissibility of a Confession Acquired Through Torture is a Violation of International Law

The use of perjured testimony to protect the admissibility of a confession acquired through torture is inconsistent with basic principles of due process and fundamental fairness recognized by international law. These principles become even more significant in cases involving capital punishment.

In 1948, the U.N. General Assembly adopted the Universal Declaration of Human Rights (hereinafter "Universal Declaration"), which is the most well-recognized and respected elaboration of international human rights norms of the twentieth century. G.A. Res. 217 (A)(III), U.N. Doc. A/810 at 71 (1948). While the Universal Declaration is not a treaty obligation, it is recognized to embody the rules of international law in the realm of human rights. Article 8 of the Universal Declaration recognizes that "[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or law." Article 10 states that "[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." These provisions seek to ensure that principles of due process and fundamental fairness are respected in criminal proceedings.

Article 14 of the Covenant on Civil and Political Rights establishes basic procedural guarantees in civil and criminal trials. Article 14(1) provides in pertinent part:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair public hearing by a competent, independent and impartial tribunal established by law.

According to the Human Rights Committee, Article 14 must be read in conjunction with Article 6 of the Covenant on Civil and Political Rights, which places restrictions on the use of the death penalty. Article 6(1) provides that "[n]o one shall be arbitrarily deprived of his life." Article 6(2) adds that the death sentence may "only be carried out pursuant to a final judgment rendered by a competent court." In interpreting Article 6, the Human Rights Committee has indicated that "[t]he procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal." Human Rights Committee, General Comment No. 6 (1982). Indeed, the Human Rights Committee has indicated that "in capital punishment cases, the duty of States parties to observe rigorously all the guarantees for a fair trial . . . is even more imperative." Reid v. Jamaica, No. 250/1987) reprinted in 11 Human Rights Law Journal 321 (1990). See alsoWright v. Jamaica, reprinted in 13 Human Rights Law Journal 351 (1992).

The U.N. General Assembly has emphasized the importance of due process and fundamental fairness in criminal cases, particularly in cases involving capital punishment. In Resolution 35/172, for example, the General Assembly urged member states, inter alia, "to respect as a minimum standard the content of the provisions of articles 6, 14 and 15 of the International Covenant on Civil and Political Rights and, where necessary, to review their legal rules and practices so as to guarantee the most careful legal procedures and the greatest possible safeguards for the accused in capital cases." G.A. Res. 35/172 (Dec. 15, 1980). See also United Nations, Economic and Social Council, Safeguards Guaranteeing Protection of Rights of Those Facing the Death Penalty, E.S.C. Res. 1996/15 (1996).

These principles of due process and fundamental fairness also apply to proceedings before international tribunals. See generally Durward Sandifer, Evidence Before International Tribunals 426-443 (rev. ed., 1975); Bin Cheng, General Principles of Law 158-160, 358-361 (1953). Proceedings before the International Criminal Courts for the former Yugoslavia and Rwanda must respect the rights of defendants and ensure that due process and fundamental fairness are protected. For example, Rule 95 of the Rules of Procedure and Evidence for the International Criminal Tribunal for the former Yugoslavia provides that "[n]o evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings." (5) Rules of Procedure and Evidence (IT/32/REV.17). The recently adopted Rome Statute of the International Criminal Court also seeks to ensure the legitimacy of the criminal process. Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (1998). For example, Article 67 establishes numerous procedural guarantees to defendants and provides that they shall be entitled "to a fair hearing conducted impartially." Article 81(1) allows a convicted person to make an appeal on any ground that affected the fairness or reliability of the proceedings. Article 84(1) allows a convicted person to seek revision of a final judgment on the grounds that "decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified . . . ."

Regional agreements also recognize the importance of ensuring due process and fundamental fairness in criminal proceedings, particularly in cases involving capital punishment. See American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX (1948), at art. XXV and XXVI; American Convention on Human Rights, supra, at art. 8(1) ("Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him . . . ."); European Convention for the Protection of Human Rights and Fundamental Freedoms, supra, at art. 6(1) ("In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time . . . ."); African Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3/Rev. 5, at art. 7(1) ("Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force. . . .")

The Inter-American Court of Human Rights recently held that states which recognize capital punishment "must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. . . . If due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognizes and protects is at stake: human life." (6) Inter-American Court of Human Rights, Advisory Opinion OC-16/99, at para. 135. "Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result." Id. at para. 136. In addition, the Inter-American Commission has also indicated that "[b]efore the death penalty can be executed, the accused person must be given all the guarantees established by pre-existing laws, which includes those rights and freedoms enshrined in the American Declaration on the Rights and Duties of Man." Inter-American Commission on Human Rights, Case 11,139, at para. 171, Report No. 57/96 of 6 December 1996, OEA/Ser/L/V/II.98. Doc. 7, rev. (Feb. 19, 1998).

Indeed, the importance of ensuring due process and fundamental fairness in criminal proceedings is a general principle common to the major legal systems of the world. For example, the Canadian Charter of Rights and Freedoms provides that where "a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." Canadian Charter of Rights and Freedoms, Section 24(2). Similarly, the South African Constitution provides that "[e]vidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise detrimental to the administration of justice." South African Constitution, Section 35(5). In England, the Police and Criminal Evidence Act requires the exclusion of evidence "if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." Police and Criminal Evidence Act (1984), Section 78(1).

In sum, the use of perjured testimony to protect the admissibility of a confession acquired through torture is inconsistent with the basic principles of due process and fundamental fairness established by international law, including U.S. treaty obligations and customary international law. These principles are particularly significant in cases involving capital punishment.

II.

INTERNATIONAL LAW IS PART OF UNITED STATES LAW AND IS DIRECTLY ENFORCEABLE IN THE UNITED STATES

International law, consisting of both treaty obligations and customary international law, is a fundamental part of U.S. law. Accordingly, they are both directly enforceable and may be relied upon by this Court.
International Law is Part of United States Law

It is well settled that treaties signed and ratified by the United States are the law of the United States and supreme over the laws of the several states. Under the Supremacy Clause of the U.S. Constitution, "all Treaties made, or which shall be made, under the Authority of the United States shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. See generally Missouri v. Holland, 252 U.S. 416 (1920). See also U.S. Dep't of State, Initial Report of the United States of America to the U.N. Human Rights Committee Under the International Covenant on Civil and Political Rights 27 (1994) ("Under the Constitution, duly-ratified treaties are the supreme law of the land, equal with enacted federal statutes.").

In addition, customary international law is also a part of U.S. law. As the Supreme Court stated in The Paquete Habana, 175 U.S. 677, 700 (1900), "[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination." (7) To determine the status of customary international law, courts may consult a variety of sources, including executive, legislative, and judicial precedents, international agreements, the recorded expertise of jurists and commentators, and other sources reflecting the actual acquiescence of the international community to such principles. Id. These principles have been acknowledged and followed by countless U.S. courts. See, e.g., First Nat'l City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 623 (1983) ("[the claim] arises under international law, which, as we have frequently reiterated is part of our law"); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) ("[I]t is, of course, true that United States courts apply international law as part of our own in appropriate circumstances."). In the area of human rights, international law has been recognized and applied by numerous courts. See Jama v. United States Immigration and Naturalization Service, 22 F.Supp. 2d 353 (D.C. N.J. 1998); Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996); Kadic v. Karadzic, 70 F.3d 232, 246 (2nd Cir. 1995); Hilao v. Marcos, 25 F.3d 1467, 1474-1476 (9th Cir. 1994);Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2nd Cir. 1980).

These basic principles of U.S. law are recognized in the Restatement (Third) §111(1), which provides that "[i]nternational law and international agreements of the United States are law of the United States and supreme over the law of the several States." (8) As such, U.S. courts are bound to give effect to U.S. treaty obligations and to customary international law.

These International Rules are Directly Enforceable in the United States

These international rules - the prohibitions against torture, the use of confessions acquired through torture, and the use of perjured testimony to protect the admissibility of a confession acquired through torture - are part of U.S. law, as set forth in U.S. treaty obligations and as recognized by customary international law. As such, they are directly enforceable in U.S. courts and are available as an alternate basis for granting the petition for habeas corpus relief.

The United States has ratified both the Covenant on Civil and Political Rights and the Convention against Torture. (9) By ratifying these treaties, the United States has recognized the binding nature of their provisions. (10) Indeed, the U.S. commitment to these agreements was forcefully reasserted in December 1998 by President Bill Clinton in Executive Order, No. 13107. According to Section 1(a) of the Executive Order, "[i]t shall be the policy and practice of the United States, being committed to the protection and promotion of human rights and fundamental freedoms, fullyto respect and implement its obligations under the international human rights agreements to which it is a party, including the [Covenant on Civil and Political Rights and the Convention against Torture]. . . ." Executive Order, No. 13107, 63 FR 68991 (Dec. 10, 1998) (emphasis added). Section 2(a) provides that "[a]ll executive departments and agencies . . . shall maintain a current awareness of United States international human rights obligations that are relevant to their functions and shall perform such functions so as to respect and implement those obligations fully." Finally, Section 6(d) adds that "[t]o the maximum extent practicable and subject to the availability of appropriations, agencies shall carry out the provisions of this order." It is difficult to imagine a more clear and unequivocal affirmation of the obligations set forth in the Covenant on Civil and Political Rights and the Convention against Torture. (11)

In addition to the binding nature of these treaty obligations, the United States is also bound by customary international law. The prohibitions against torture, the use of confessions acquired through torture, and the use of perjured testimony to protect the admissibility of a confession acquired through torture are universal - expressed in international and regional agreements, affirmed by international tribunals and international organizations, and recognized as a general practice among states. These customary norms have never been questioned or challenged by the United States Government. Accordingly, these customary norms of international law are part of US. law and binding in the United States.

III.

FEDERAL LAW MUST BE INTERPRETED IN A MANNER THAT DOES NOT VIOLATE INTERNATIONAL LAW

It is a well-known canon of domestic statutory construction that federal law must not be interpreted in such a manner as to violate international law if any other construction is fairly possible. Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See also Restatement (Third) § 114. Applying this rule to cases where there is a conflict between international law and domestic practice, Restatement (Third) § 115(1)(a) indicates that "[a]n Act of Congress supersedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supersede the earlier rule or provision is clear and if the act and the earlier rule or provision cannot be fairly reconciled." Recognizing the important role of international law, U.S. courts have demanded an expression of clear intent before they will conclude that Congress intended to supercede international law in any of its statutes. See Lauritzen v. Larsen, 345 U.S. 511, 578 (1953). See also Mississippi Poultry Association, Inc., v. Madigan, 992 F.2d 1359, 1365 (5th Cir. 1993); United States v. Palestine Liberation Organization, 695 F.Supp. 1456 (S.D.N.Y. 1988) ("Only where a treaty is irreconcilable with a later enacted statute and Congress has clearly evinced an intent to supersede a treaty by enacting a statute does the later enacted statute take precedence.").

In Ma v. Reno, 208 F.3d 815 (9th Cir. 2000), the Ninth Circuit recently applied this rule of statutory construction to affirm principles of international law recognized in the Covenant on Civil and Political Rights. In its ruling, the Court indicated that the Charming Betsy doctrine requires courts to construe legislation to avoid violating international law whenever possible. Although Congress can override international law by enacting an inconsistent statute, such efforts must be clear and unambiguous. Indeed, courts should not presume that Congress intended to override international law when a statute can reasonably be reconciled with international law.
In the present case, the Antiterrorism and Effective Death Penalty Act (hereinafter "AEDPA") must be interpreted consistently with international law. Interpreting the AEDPA provisions to foreclose review of the due process claim of perjured testimony would leave Fierro without judicial redress for an act of torture and the use of a confession acquired through torture, and would thus breach numerous norms of international law that the United States is obligated to uphold. Indeed, U.S. ratification of the Covenant on Civil and Political Rights and the Convention against Torture, coupled with Executive Order, No. 13107, clearly indicate that the United States is fully committed to the protection and promotion of human rights and fundamental freedoms. In addition, the United States has signed the American Convention on Human Rights and is obligated to act consistently with its provisions. Accordingly, in the absence of a government act that clearly and unequivocally states an intention to supersede international law, this Court must interpret the AEDPA consistent with the United States Government's obligations under international law and allow Fierro to challenge the use of perjured testimony.

IV.

IN THE ALTERNATIVE, U.S. COURTS SHOULD CONSIDER INTERNATIONAL AND COMPARATIVE NORMS WHEN REVIEWING ISSUES OF DUE PROCESS AND FUNDAMENTAL FAIRNESS

Even if this Court determines that the international prohibition against the use of perjured testimony to protect the admissibility of a confession acquired through torture is not directly binding in the United States, it should still consider these norms when reviewing U.S. law. International and comparative standards can provide important guidance to courts considering issues of due process and fundamental fairness. This applies regardless of the binding nature of the international and comparative norms. As noted by the United States Government in its Initial Report to the Committee against Torture, "[e]ven when a treaty is 'non-self-executing,' courts may nonetheless take notice of the obligations of the United States thereunder in an appropriate case and may refer to the principles and objectives, thereof, as well as to the stated policy reasons for ratification." Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention: United States of America, supra, at 62.

In Trop v. Dulles, 356 U.S. 86, 102-103 (1957), for example, the Supreme Court examined the practice among "the civilized nations of the world" as well as studies issued by the United Nations to determine whether denaturalization for wartime desertion violated evolving standards of decency as set forth in the Eighth Amendment. In Enmund v. Florida, 458 U.S. 782 (1981), the Supreme Court made reference to international standards on capital punishment when it determined that imposing the death penalty on an individual who "neither took life, attempted to take life, nor intended to take life" would be violative of the Constitution. According to the Court, "[t]he climate of international opinion concerning the acceptability of a particular punishment is an additional consideration which is not irrelevant." Id. at 796. See also Thompson v. Oklahoma, 487 U.S. 815, 831 (1987); Coker v. Georgia, 433 U.S. 584 (1976).

In Lareau v. Manson, 507 F.Supp. 1177 (D. Conn. 1980), the District Court for the District of Connecticut reviewed several international agreements, including the U.N. Standard Minimum Rules for the Treatment of Prisoners, in determining whether prison conditions violated basic standards of decency under the Due Process Clause. (12) According to the Court, "[t]he standards embodied in this [U.N.] statement are relevant to the canons of decency and fairness which express the notions of justice embodied in the Due Process Clause. . . . The due process guarantees in our Constitution are based on a concept which is not final and fixed, but evolves on the basis of judgments reconciling the needs both of continuity and of change in a progressive society." Id. at 1189 (citations omitted). See also Lareau v. Manson, 651 F.2d 96, 106 (2nd Cir. 1981).

Indeed, reference to international and comparative sources of law is wholly consistent with the drafting of the Declaration of Independence and the U.S. Constitution. As evidenced by a careful reading of The Federalist Papers, the drafters of these seminal documents were strongly influenced by numerous sources of law, both foreign and international. For example, it was only through such comparative analysis that the drafters of these documents were able to distill the concept of "unalienable Rights." See Louis Henkin, The Age of Rights 83-97 (1990). As recently noted by Justice Ginsburg:

In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world. In this reality, as well as the determination to counter it, we all share.
Ruth Bader Ginsburg, "Affirmative Action: An International Human Rights Dialogue," 1 Rutgers Race & L. Rev. 193, 228, 229 (1999).

CONCLUSION

International law, including treaties ratified by the United States and customary international law, requires states to ensure due process and fundamental fairness in criminal proceedings. These rules become even more critical in capital punishment cases. Accordingly, the use of perjured testimony to protect the admissibility of a confession acquired through torture is a violation of international law. As a member of the international community, the United States participated in the development of these rules. As a State Party to the Covenant on Civil and Political Rights and the Convention against Torture, it has specifically accepted the binding nature of these obligations.

For these reasons, Amici Curiae respectfully request this Court to affirm the principles of international law that protect due process and fundamental fairness and, therefore, to prohibit the use of perjured testimony in the case of Cesar Roberto Fierro.

Dated: May 30, 2000

ENDNOTES

1. The Extradition and Human Rights Committee is one of a number of committees of the American Branch of the International Law Association. The views expressed herein represent only those of the Extradition and Human Rights Committee of the American Branch of the International Law Association. Not all members of the Committee participated in the drafting of this brief.

2. Briefly stated, torture is generally understood as acts or threatened acts of public officials that intentionally inflict severe physical or mental pain or suffering on an individual in order to fulfill a certain purpose. Threats to friends or family made by public officials to compel an individual to take action may constitute torture. See, e.g., Nigel S. Rodley, The Treatment of Prisoners under International Law 10 (2d ed. 1999). (The threat that "physical abuses will be extended to persons close to the prisoner" is the "most powerful of all [torture techniques]."). Sir Nigel Rodley is the U.N. Special Rapporteur on torture. See also J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 118 (1988) ("The acts inflicting severe mental pain or suffering can be of very different kinds. One category consists of acts which imply threats or which create fear in the victim. Examples are that the victim is made to believe that he will be killed or that reprisals will be taken against his wife or his children if he does not co-operate.")

3. The use of coerced statements is inconsistent with the principles of due process and fundamental fairness established by international law. The use of statements acquired through torture represents the most extreme form of coerced statements. Indeed, it constitutes one of the most egregious violations of international law.

4. As of January 1, 2000, there are 119 States Parties to the Convention against Torture.

5. Article 91 adds that "[i]f a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony."

6. Pursuant to Article 64, the Inter-American Court of Human Rights is authorized to issue advisory opinions "regarding the interpretation of the [American] Convention or other treaties concerning the protection of human rights in the American states."

7. The incorporation of customary international law into domestic law has a venerable heritage. U.S. courts have frequently given effect to principles of customary international law. See, e.g.,Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793) ("the United States [has], by taking a place among the nations of the earth, become amenable to the laws of nations. . . . "); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796) ("When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement"). The incorporation principle is also supported by Executive Branch statements since the earliest days of the Republic. Attorney General Randolph recognized that international law is part of our domestic law. See 1 Op. Att'y Gen. 26, 27 (1792). See also 1 Op. Att'y Gen. 566, 570-71 (1822) (referring to the "general laws of nations [being] the laws of the country"); 11 Op. Att'y Gen. 297, 299-300 (1865) (stating that "the law of nations . . . [is] a part of the law of the land").

8. See also Louis Henkin, Foreign Affairs and the Constitution 223 (1972) ("[A]s in the case of treaties, American courts will give effect to the obligations of the United States under customary international law; at the behest of affected private parties, courts will prevent violations of international law by the states or by lower federal officials.").

9. The United States has also signed the American Convention on Human Rights. According to the Vienna Convention on the Law of Treaties, a state that has signed a treaty is obliged to refrain from acts which would defeat the object and purpose of the treaty. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF. 39/27 (1969), at art. 18.

10. While the United States Senate attached declarations indicating its position that the Covenant on Civil and Political Rights and the Convention against Torture would be deemed "non self-executing," these declarations do not effect the international obligations the United States has assumed or the relevance of the ratification of these agreements for the interpretation of federal statutes. See generally Jordan J. Paust, "Customary International Law and Human Rights Treaties are Law of the United States," 20 Mich. J. Int'l L. 301, 325-327 (1999); John Quigley, "Human Rights Defenses in U.S. Courts," 20 Hum. Rts. Q. 555 (1998). In addition, the legislative history of the Senate declarations suggest that the Senate intended for the self-execution declarations to apply only to private causes of action. S.Res. 4783-84, 102nd Cong. (1992). They do not affect the ability of individuals to invoke relevant treaty provisions defensively in habeas corpus proceedings. Finally, the Senate declarations are not binding on the courts because issues of treaty execution must be determined solely by the judiciary. See White v. Paulsen, 997 F.Supp. 1380, 1387 (E.D. WA. 1998). Under the criteria for determining whether a treaty provision is self-executing, provisions such as Article 15 of the Convention against Torture clearly satisfy the requirements. See, e.g., People of Saipan v. U.S. Dep't of Interior, 502 F.2d 90 (9th Cir. 1974)

11. Section 6(a) of the Executive Order indicates that it does not create any substantive or procedural rights against the United States. However, this does not minimize the impact of this official policy statement. The Executive Order does not create any rights; it merely implements pre-existing obligations set forth in the Covenant on Civil and Political Rights and the Convention against Torture.

12 . See U.N. Standard Minimum Rules for the Treatment of Prisoners, Economic and Social Council Resolution 663C (LLIV) (1957).



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