Stardate 20031011.1406

(On Screen): Diplomatic double-talk is endlessly fascinating. There's a world of hidden meaning in seemingly innocuous phrases. Take, for example, "fruitful dialogue". Who could object to that, eh? What, we're supposed to prefer fruitless dialogue?

Well, yes, or sometimes no dialogue at all.

The European Union called Friday for the worldwide abolition of the death penalty in a declaration issued as it marked the first World Day Against the Death Penalty.

The European Union said Tuesday it would continue to use all diplomatic means to try to persuade China, Iran, the United States, Japan and others to abolish the use of the death penalty.

The Italian presidency of the 15-nation bloc called for countries that still have capital punishment to issue moratoriums, and to ban executions for people who were minors when they committed crimes.

About seventy countries worldwide still carry out the death penalty, said Michel Taube, head of the French group ECPME, or "Together Against the Death Penalty."

The Council of Europe's Parliamentary Assembly earlier this month urged the United States and Japan the only two democracies that still carry out executions to participate in a more "fruitful dialogue" on the abolition of the death penalty.

Capital punishment is one of those issues on which there seems to be no middle ground. There are endless arguments on both sides, and I do not propose to discuss whether it should be banned.

What I do wish to point out is that the majority of Americans support the use of execution in at least some cases. Since this is a democracy, the presumption is that government policy should be congruent to the will of the majority.

This is actually a matter which is handled by the states. Federal law does include some capital crimes but they are not common; virtually every prisoner on death row was convicted of murder under state statutes. Some states don't have the death penalty, some do but their judges don't tend to use it much. And in some states it's much more routine.

The Europeans want the US to participate in "fruitful dialogue" on abolition of the death penalty. What's there to talk about? They don't use capital punishment, we do. They don't like it, and we don't care what they think. They want us to stop using capital punishment, and when they say fruitful dialogue they mean that we accept their point of view and stop executing people.

It's obvious why they want that. If we don't engage in fruitful dialogue with them, then they have no chance of convincing us to ban capital punishment.

What's missing from this calculation is what's in it for us. What benefit is there for us in such discussions?

If the voters of any state collectively decide they no longer favor executions, they'll change their legal code. Congress could change the federal legal code so that no crimes were punished by execution. But it is highly doubtful whether Congress actually has the power to forbid the states from using capital punishment. (I used to have about eight paragraphs here explaining why, but the details don't really matter.)

On a strict constitutional basis, it's not at all clear there's anything for the US government to talk about with the Europeans because it's extremely doubtful that the US government has the Constitutional power to ban capital punishment, even if it wanted to. Since it doesn't want to, that would seem to make "dialogue" even more futile.

Of course, the Europeans have little interest in such unimportant points as Constitutional limits on Federal power. They tried to include clauses in a treaty regarding chemical weapons which would have violated the Fourth Amendment, and the ICC treaty violates Article III and amendments 4, 5, 6, 8, 14 and probably also Article I and amendments 9 and 10, and likely other Constitutional provisions as well. There was a proposal for a treaty regarding the Internet which would have infringed the First Amendment. This keeps happening, and when US negotiators point out that such treaties cannot be ratified, and would be nullified by the courts even if they were ratified, the Europeans fall back on denunciations of the Americans as not being team players, not being multilateral. It seems as if they don't really understand just how serious we are about the Constitution, or that they do understand but think it's an atavism, something we can and should outgrow, and that the US government should demonstrate its political maturity by ignoring the Constitution.

Meanwhile, diplomacy continues to create new meanings for words and phrases. The French ambassador says that the US and France must "work together".

In Washington on Friday, French Ambassador Jean-David Levitte, who used to be U.N. ambassador, tried to calm anxieties and foster friendly feelings.

He recalled his own shocked reaction when the World Trade Center was attacked on Sept. 11, 2001, and how he went to work on a U.N. Security Council resolution that condemned the attacks and established that international terrorist acts should be considered acts of war.