If he stays the execution, he runs the political risk of being called weak by conservatives. Allowing it to go forward, it could cast Perry as a staunch conservative who doesn't give in to the demands of Washington and international pressure. But it also invites comparisons to former President George W. Bush, who was criticized for a go-it-alone approach on foreign policy.
Ironically, it was the Bush administration that recognized the international law guaranteeing foreign nationals consular access. In 2005, Bush ordered all states, including Texas, where he was the former governor, to comply with the law. Perry, who replaced Bush as the Lone Star State's chief executive, made Texas the only state not to comply.
"If Governor Perry were president of the United States, responsible for protecting the interests of all Americans when they travel abroad, he would see this issue very differently," said John Bellinger, a lawyer at Arnold & Porter in Washington who served as legal adviser for the State Department in the second term of the Bush administration.
Bellinger said the Bush administration took a long and hard look at complying with the international law before finally taking an unpopular position to do so, especially because it involved Mexican nationals convicted of committing heinous crimes.
"It should be obvious to anyone, including officials in Texas, that if Americans, including Texans, are arrested and detained in some other country and the United States complains that they have not been given their consular notice it will be pointed out to us that the United States doesn't comply with our own international obligations," Bellinger said. "It cuts the legs out from under the State Department -- maybe not immediately but over the longer run -- to make arguments on behalf of Americans who are detained abroad."
Katherine Cesinger, a spokeswoman for Perry, said the governor has not made a final decision on the case. But she said, "If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws, as in this case, where Leal was convicted of raping and bludgeoning a 16-year-old girl to death."
"Texas is not bound by a foreign court's ruling," she added. "The U.S. Supreme Court ruled in 2008 that the treaty was not binding on the states and that the president does not have the authority to order states to review cases of the [Mexican] nationals on death row in the U.S."
Bellinger, however, says Texas is bound by the international law because the United States signed the treaty.
Neither the Obama administration nor the Mexican government contend that Leal is innocent. Rather, they argue that the United States has an obligation to comply with international law. In a 76-page application to the Supreme Court for a stay, the Obama administration argued that the execution "would place the United States in irreparable breach of its international-law obligation.