September 2012 – dwkcommentaries

Percussive Preludes at Minneapolis’ Westminster Presbyterian Church

Westminsterorgan — Westminster Presbyterian Church

Two unusual preludes opened the September 16, 2012, worship service at Minneapolis’ Westminster Presbyterian Church. Joining Westminster’s Organist and pianist, Melanie Ohnstad, for the preludes was percussionist Jeffrey Gram.

Concertino for Marimba

The first prelude was Movement II of Concertino for Marimba by Paul Creston, an Italian-American composer (1906-1985) whose works have a strong rhythmic element. This work originally was written for marimba and orchestra. Its second movement is marked “Calm.” After an introductory theme first presented by the piano (solo flute in the orchestral version), the main theme (in chordal structure) is played by the marimba with four mallets. The general mood of tranquility persists except for the middle part.

Jeffrey Gram says that “this movement is written in ABA form. The A section that begins and ends the movement has the marimba’s rolled melodic lines flowing over the piano’s subtle rhythmic pulse. The B section is a cadenza or an ornamental passage in a free rhythmic style, and it increases in tempo and crescendos to a climax.”

Praise

The second prelude was Praise for steel drum and organ by Carol Barnett. With the steel drum, I was expecting to hear Caribbean rhythms. Instead there was a continuation of the mood of tranquility with a true blending of the sounds of the two instruments.

The Barnett piece, according to Gram, “begins calmly enough to evoke tranquility, with the steel drum providing some rhythmic interest over the organ’s low notes, but the piece develops much more active and rhythmic themes throughout and builds to an exciting finish. The organ provides much of the driving force of the piece. I hear the steel drum almost as hand bells or chimes (an appropriate allusion for a performance in the church) with repetitive rhythms and punctuating melodic lines here and there. The work’s mixed meters and rhythmic patterns require the performer to be on his or her toes.”

Gram said that Praise is scored for organ and steel drum, vibraphone, or marimba, and he learned the percussion part on both marimba and steel drum and decided to play it on steel drum to add another instrumental voice to the preludes.

Another reason, he acknowledged, for using the steel drum is that “it was much easier for me to play accurately on that instrument. The part contains several lines of melody consisting of unison double-stops (two notes played simultaneously) where the two notes are up to a couple octaves apart from each other. On the steel drum, these notes are very near to each other all around the circular drum and thus are relatively simple to execute accurately. On the marimba, notes are laid out linearly like a piano such that notes a couple octaves apart are actually a few feet apart and the performer must reach in opposite directions to strike each note. In the grand scheme of marimba literature, this is a fairly common and not necessarily a difficult task for a performer. But for this part-time percussionist, it can be difficult to perform the part accurately with any measure of consistency. Plus, the steel drum is just plain fun to play and to play it along with organ is a truly unique and rewarding experience.”

The composer of Praise, Carol Barnett, is a charter member of the American Composers Forum and a graduate of the University of Minnesota, where she studied composition with Dominick Argento and Paul Fetler, piano with Bernard Weiser, and flute with Emil J. Niosi. Barnett now is a Studio Artist (Composition) at Minneapolis’ Augsburg College in addition to being a composer and performer. She enjoys the challenge of using instruments in unusual combinations, and certainly the organ with steel drum is such a combination.

The Musicians

Melanie Ohnstad has served Westminster as organist since November 1995. She received the Doctor of Musical Arts degree from the University of Minnesota. She also holds the Master of Music in Organ Performance degree from Arizona State University and the Bachelor of Music degree from St. Olaf College.

Jeffrey Gram is a performer and advocate of new music. His performance experience includes solo and ensemble work with several new music ensembles across the U.S., an appearance at the International Gaudeamus Interpreters Competition in Rotterdam, The Netherlands, and premier performances of percussion works by Thomas DeLio, Roger Zahab, and Stuart Saunders Smith. He performs on a CD of new music.

Jeffrey earned bachelor’s and master’s degrees in percussion performance from Northwestern University and the University of Akron and taught percussion at the University of Pittsburgh and Muskingum College.

Jeffrey has since earned a Juris Doctor degree and practiced law. He now is a Gift Planner with Minnesota Philanthropy Partners, a network of foundations, funds and organizations that share knowledge and services to have the greatest possible impact through charitable giving. He specializes in connecting individuals, families and businesses with giving opportunities that match their values and meet their personal goals.

Gram is a Westminster member.

Conclusion

Following these two preludes was the moving Processional Hymn, “O Holy One and Nameless,” that was discussed in a prior post. The sermon that day–“What Do Our Hearts Treasure?”–was also excerpted in another post. A video of the entire service is on the web.

In Memorium: Rev. Dr. Henry William Andersen,1925-2012

HankAndersenyoung — Rev. Dr. Henry W. Andersen

Rev. Dr. Henry William Andersen, a retired Presbyterian minister, died in Portland, Oregon on Sept. 3rd, surrounded by his beloved family.

Born on Jan. 16, 1925, in Omaha, Nebraska, he studied at the University of Nebraska before serving in the Army in WWII.

Hank was an infantry squad leader, and on Christmas Eve, 1944, he was on the troopship S.S. Leopoldville in the English Channel on the way to Cherbourg, France to fight in the Battle of the Bulge. He led a group of 15 or 20 soldiers to go up on the open deck to sing Christmas carols. A German torpedo struck the ship, killing many troops below deck before it sunk. A British destroyer pulled along the sinking ship. Andersen leapt across the gap, and his carol-singing comrades followed. Later on shore, an all-black unit fed and comforted the survivors. One of the carolers and thus saved from death was a Jewish man. This event is commemorated in a Dec. 23, 2011, PBS News Hour report.

This experience along with battle scars; a Purple Heart; and other citations changed the direction of his life from law to the ministry.

After the war, he returned to University of Nebraska, where he finished his undergraduate degree and met and married Mary Esther Dunkin, who survives him. He then went to McCormick Theological Seminary in Chicago, where he graduated with honors. Later Hank was on the Board of Trustees at McCormick, which established two annual Henry W. Andersen Awards in Pastoral Ministry and in Preaching. He did post-graduate study at Yale Divinity School and at Mansfield College, Oxford, England. He was awarded an honorary Doctor of Divinity Degree by Buena Vista College and received the University of Nebraska and McCormick Seminary Distinguished Alumnus awards.

Over the 40 years following seminary, Hank served four Presbyterian churches as pastor and head of staff: in Ellsworth and Wichita, Kan., LaGrange, Ill. and Cleveland Heights, Ohio. In every church he advocated for racial, economic and social justice. He believed that love and justice were inseparable, that love of God and love of one’s neighbor were necessary to establish a just world, and was committed to working for social change to create a world in which the poor would have justice, not mere charity. He held numerous local, national and international church positions and was active in the greater community.

He inspired international religious, medical and business leaders to work on concrete solutions to problems facing the developing world, and in 1982, he delivered the keynote address at a United Nations conference on developing nations. From 1982 until 1991, he served on the Nestle Infant Formula Commission, chaired by former Senator and Secretary of State Edmund Muskie. In service to this Commission, he engaged in on-site inspections of Nestle’s practices around the world. The Commission’s work led to a lasting change in Nestle’s practices.

Hank wrote many articles for religious journals and wrote and spoke on the German theologian and WWII martyr, Dietrich Bonheoffer, a personal hero. I was privileged to hear one such presentation in Minneapolis.

I got to know Hank and his wife, Mary, when they lived in Minneapolis and attended Westminster Presbyterian Church, where their son, Rev. Dr. Timothy Hart-Andersen, was the Senior Pastor.

I can attest that an obituary accurately said, “Hank loved life and sought to engage it fully and faithfully in every role he assumed. His sense of humor and wonderful laugh endeared him to everyone. He was present with each person he met and made each one feel special. He was sweet, kind, and gentle, but powerful for the greater good and for social justice. He was down-to-earth yet filled with an inner light which unceasingly radiated to all. His impact is lasting.”

He is survived by Mary, his wife of 65 years; children Jennifer (Rhys) of Vancouver, B.C.; Henry Thomas (Jessica) of Salem, Oregon; Timothy Dunkin (Elizabeth) of Minneapolis; and Barbara (John) of San Antonio, Texas; nine grandchildren; and three great-grandchildren.

A memorial worship service was held at Westminster Presbyterian Church, Portland, on September 15th. Other memorial services will be held at Minneapolis’ Westminster Presbyterian Church on Saturday, October 13 at 10 A.M. and on Saturday, October 20, time to be announced, at Fairmount Presbyterian Church, 2757 Fairmount Boulevard, Cleveland Heights, Ohio.

Memorial gifts may be sent to the Henry W. and Mary E. Andersen Global Awareness Fund at McCormick Theological Seminary, 5460 S. University Avenue, Chicago, IL, 60615. This fund helps the seminary increase opportunities for international students and provide all students with opportunities for cross-cultural experiences across the globe.

This obituary is drawn from others in Oregonlive, the Cleveland Plain Dealer and the McCormick seminary website.

“How Do We Know God: Human Community”

HARTANDERSENTIM — Rev. Dr. Timothy Hart-Andersen

WestminsterB — Westminster Presbyterian Church

On September 23rd, Rev. Dr. Timothy Hart-Andersen, Senior Pastor of Minneapolis’ Westminster Presbyterian Church, delivered the sermon with the above title.

“How do we know God?

Two weeks ago we answered that question by looking at the story of Creation found in Genesis 1 [: 1-25]. The beauty and majesty and wonder of the natural world and its inhabitants, the creatures – all of that, we concluded, introduces us to the Creator. . . .

But the ancient Hebrew account of Creation doesn’t stop there, with the mountains and rivers, with the birds in the air and the creeping things on the earth and the fish of the sea. The old stories take us, eventually, to the creation of humankind.

There are two accounts of creation in the Hebrew Scriptures.

One of them, the better-known seven-day version in Genesis 1 [:1-25], ends with humankind being created in the image of God – ‘male and female, God created them,’ . . . – and that happens after . . . the heavens and the earth, next the waters and the dry land, then the plants and animals [are created]. . . .

[This passage in Genesis 1: 27-28 goes on to say that “God told them to ‘be fruitful and multiply, and fill the earth [and subdue it] . . . . ‘ [This passage is often used to argue that] “the very design of humanity . . . revealed God’s intention for male and female to procreate [and, therefore, that gay marriage was against God’s will.] . . . [Rev. Hart-Andersen agreed that] giving birth is a wonderful and necessary part of life, but there’s more to the biblical story of creation.

The second account [of creation], from Genesis 2, puts the human being on the earth before the plants and animals, and humanity does not come in a pair this time, but, rather, as a singular, non-gendered person. [As Genesis 2:7 puts it, ‘the Lord God formed man from the dust of the ground.’]

[In other words,] God bends down and scoops up the dust of the earth – the Hebrew word for the dust of the ground is ha adamah – and, like an artist working with clay, God forms a new creature. Arms and legs and head, hands and feet, each little toe, every joint, eyes and mouth, ears and nose. Then God blows breath into the nostrils of the mud-creature – and ha adam, the earthling, the one made from the adamah, the dust of the river bank, stirs to life. God then uses the same soil to form the creatures of the earth, to whom the earthling, gives names. There is no gender identity to the earthling at this point. That enters later in the story, when the Hebrew changes to ish, man, and isha, woman. It’s simply not correct to use the English term man as the translation of adamah. . . .

I think it’s best to hear these texts not as technical descriptions but, rather, as stories told around the campfires of desert dwellers, repeated during rituals, shared by parents with their children. They’re narratives of profound and lasting significance, telling us who our God is and how God has been with us since before the beginning of time.

It’s not a question of which version is correct; there’s wisdom in both stories. Both accounts contain deep and ancient truth about God and our relationship to God. From my vantage point each of the old stories holds at least one deep truth.

First, in Genesis 1, when God decides to create the human being, the big news is who they look like. God says, “Let us make humankind in our image, according to our likeness.” (Genesis 1:26)

The chief point of this account is not the business about being fruitful and multiplying – it’s the astonishing claim that every human being, male and female, is made in the image of God. That’s a breath-taking, life-altering declaration.

How do we know God?

Take a look around. Look into the face of another, look into a mirror, and you will see something of God. That claim revolutionizes religion: the God we worship and serve is as close to us as the next person. No one – not our enemies, not those who hate us, not those ‘on the other side,’ not those we despise or fear or view with revulsion – no one is excluded from the image of God. Everyone bears it alike and is, therefore, worthy of respect and honor. . . .

We may be introduced to God by the dazzling wonder of the natural world, but we know God most completely in our fellow human beings. That, above all else, should compel us to strive for fullness of life for all people. The pursuit of justice is not simply some vague prophetic imperative – it is how we come to know God.

If the linking of the divine image with every human life is the salient point of the first version of creation, the second account yields another great theological truth. When God has formed the one earthling and placed that creature in the garden, God is not satisfied. Everything else in creation up to then had been deemed good, but when God sees that the human creature lacks a companion, God says, “It is not good that the earthling should be alone; I will make the earthling a partner as a helper.” (Genesis 2:18)

The human creature needs a companion. God throws everything at the earthling as a possible partner – birds, beasts, fish of the sea, and nothing sticks. The earthling needs a companion of its own kind. The human creature is not meant to be alone. Human beings need community. Do we not all understand that, from our own experience?

Three weeks ago today, in the early morning darkness, I was in my father’s room on the skilled nursing floor of the retirement community where my parents live. I was alone with him, and lonely, as he was moving toward death. All was quiet, save for his raspy breathing. It was 1:30 in the morning in Portland, [Oregon,] but I needed to be in touch with someone.

It is not good for the earthling to be alone.

I decided to send a text message to my colleagues on staff, to tell them my dad was nearing the end. I knew they would be waking in a few hours to prepare for worship at Westminster and I wanted this community to include us in prayer that day.

[Tim immediately received a response that he had sent it to a wrong number, but the recipient also said that he was sorry to hear about Tim’s father.] We continued our texting back and forth, this stranger and I, for some time [until after his father’s death on September 5th].[1]

Whoever it was sensed I needed someone by my side, and he or she was willing to stand with me through those lonely hours. We were created to be in community, and I needed it that night. The stranger mediated for me the divine presence. How do we know God? We know God in human community, in the love that binds us to one another, even when we may not know each other. . . .

It is not good for the earthling to be alone.

The Sunday after my father’s death I received an email from our partner church in Matanzas, Cuba. . . . It was a very long email, with a string of personal messages from every member of the congregation who was there that day. Very few of them have access to email, and regular mail service to the U.S. is not reliable, so they patiently lined up in the church office and one by one typed in their words of love and support on that old, slow computer.

We come to know God through the love of others. . . .

It was a summary of the truth found in the two accounts of creation: we bear God’s image – because of God we are – and we are given each other – because of God we are one.

We cannot exist, God realizes in this account of Genesis, apart from one another. Here we see an early indication of God’s own Trinitarian nature – even the divine being exists only in community. Remember the Word that was in the beginning with God? The Spirit that brooded over the dark waters was there, too. “Let us make the human being in our image,” God says, “according to our likeness.”

Relationships matter; in them God looks back at us.”

The full text of the sermon is available online as is a video of the service.

[1] A subsequent post will set forth an obituary for Tim’s father, Rev. Dr. Henry William Andersen.

Prayer of Confession

An important part of every worship service at Minneapolis’ Westminster Presbyterian Church is the prayer of confession.

The text often differs, but the essential elements do not. They are confessing our individual and collective failures to do what we should do and our doing what we should not be doing and then asking for God’s forgiveness.

The Prayer of Confession on September 23rd was from the United Church of Christ, USA (1986). Here it is:

“God of all mercy, we confess before you and each other that we have been unfaithful to you. We lack love for neighbors, we waste opportunities to do good, and we look the other way when you cry out to us in the suffering of our brothers and sisters in need. We are sincerely sorry for our sins, both those we commit deliberately and those we allow to overtake us. We ask your forgiveness and pray for strength that we may follow in your way and love all your people with that perfect love which casts our all fear; through Jesus Christ our Redeemer. Amen.”

The Prayer of Confession then continues with silent personal prayers by the members of the congregation.

In response to these prayers, one of the ministers leads the congregation in the Declaration of God’s Forgiveness (from the New Testament‘s Romans 8:34; 2 Cor. 5:17):

One: Anyone who is in Christ is a new creation. The old life has gone; a new life has begun. Friends, hear the good news:

All: In Jesus Christ we are forgiven. Alleluia! Amen.

“What Do Our Hearts Treasure?”

Westminster Presbyterian Church, Minneapolis, 6/15/05 — Westminster Presbyterian Church

This was the title of the sermon by Rev. Dr. James Gertmenian of Minneapolis’ Plymouth Congregational Church at Westminster Presbyterian Church on September 16, 2012. A prior post examined the Processional Hymn that day–“O Holy One and Nameless”–which was written by Rev. Gertmenian. A video of this service is on the web.

The sermon was based upon two passages from the New Testament of the Holy Bible.

The first, Luke 10: 25-28, says: “Just then a lawyer stood up to test Jesus.’Teacher,’ he said, ‘what must I do to inherit eternal life?’ [Jesus] said to him, ‘What is written in the law? What do you read there?’ [The lawyer] answered, ‘You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind’ and your neighbor as yourself.’ And [Jesus] said to [the lawyer], ‘You have given the right answer; do this, and you will live.'”

Rev. Gertmenian said the lawyer, at least on the surface, wanted to know how he might gain eternal life. “It is what we all want, I think, though we use different languages to describe it. Not length of life, really, not just simple persistence into some imagined future heaven, but something that endures by virtue of its depth, by virtue of a quality that transcends time. Our faith tells us that God, the eternal one, has somehow touched us with that quality, that the life spark in us means that we partake of or are connected to the enduring, the unquenchable, the forever.”

The second Scriptural text for the day, II Corinthinians 4: 16-18, states: “So we do not lose heart. Even though our outer nature is wasting away, our inner nature is being renewed day by day. For this momentary slight affliction is preparing us for an eternal weight of glory beyond all measure, because we look not at what can be seen but at what cannot be seen; for what can be seen is temporary, but what cannot be seen is eternal.”

Yes, said Gertmenian, ”but what are those unseen things? What lasts?”

He said, “Our lives . . . are over in a flash; we burst forth, sparkle, glimmer, grow dim, and then are gone. In the cosmic scheme of things, flesh is practically as ephemeral and evanescent as vapor or gas; only rocks, ice, dust, and space endure.”

“What lasts? What do our hearts treasure? What is eternal? More specifically, what have been the eternal moments in your life? I don’t mean the big moments, or even the most memorable ones, but the deepest ones which, by virtue of their depth, make the passing of time – and even memory – irrelevant?”

Gertmenian offered two moments in his own life that upon reflection he regarded as eternal.

One was spending time with his eight-year-old daughter having ice cream after watching Halley’s Comet. “I know that for the momentary gift of [my daughter’s] hand in mine, for the frivolous pleasure of tasting ice cream, for this odd adventure on a warm evening, I will gladly, willingly, joyfully embrace the limits of my life: its brevity, its fragility, its impermanence. It is rich – this life – rich like found treasure and meant, I think, to be spent extravagantly and with exuberant gratitude to God.”

“Eternal life consists in this: in taking even one moment and living it so prodigally, with such abandon, that we do not grudge its going. One moment lived like that is eternal. One moment, lived like that, is heaven. Jesus draws this truth to its deepest level when he says: ‘Whoever seeks to save their life will lose it, and whoever loses their life for my sake will save it.'” (Matthew 10:39.)

“Think about your own life, your own self. What lasts? What [does your heart] . . . treasure? What is eternal?”

“Maybe you’ll take a few moments . . . to think about these things. And as you mull them, remember how Jesus replied to the man who wanted eternal life. Ultimately, he said, after obedience to the core commandments, the way to eternal life is in giving up what you have, in opening your hands and releasing the things you cling to. Not just possessions, but everything. Even time.”

I have pondered the question posed by Rev. Gertmenian and will share those reflections in a subsequent post.

“O Holy One and Nameless”

Westminster Presbyterian Church, Minneapolis, 10/1/06 — Westminster Presbyterian Church

“O Holy One and Nameless” was the beautiful and moving Processional Hymn at the September 16, 2012, worship service at Minneapolis’ Westminster Presbyterian Church.

The lyrics were written by Rev. Dr. James Gertmenian, Senior Minister of Minneapolis’ Plymouth Congregational Church, and are set to the “Munich” hymn tune by Felix Mendelssohn.[1] Rev. Gertmenian said in writing this hymn he “wanted to use images and themes which, while rooted in the Christian tradition, spoke of a more universalistic vision. All religions are not the same, and we need not adopt a goal of amalgamating the great families of faith, but humanity’s future depends on our ability to see that the taproots of religion are sunk in common soil and draw from the same nutrients of spirit and truth.” Here are the hymn’s lyrics:

O holy One and Nameless Who wears a thousand names,

Throughout the ages changing, yet steadfastly the same;

We gather here to worship in hopefulness and praise,

Recalling all your mercies that magnify our days.

==============================

In awe we humbly witness that your are greater still

Than any human language could compass or fulfill.

We praise your for the myst’ry in which your truth is sealed.

We praise you for the story that is your truth revealed.

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That story’s long unfolding from temple, mosque, and church,

Grows ever wide and deeper and sanctifies the search

That leads to your dwelling within the common place,

Where all the world is holy and radiates your grace.

================================

And yet this wider story is told a thousand ways,

With each a matchless vision with each a certain praise

So ev’ry human family and ev’ry human soul

May know you in their language and, knowing, made whole.

================================

For wisdom free from doctrine, for faith transcending creed,

For simple, true compassion, for love enshrined in deed:

We offer up our bodies, our hearts, our hands, our minds

To find our truest worship in serving humankind.

================================

This hymn was especially appropriate at this time in light of the recent Muslim rage about the trailer for an outrageous movie about the Prophet Mohamed that apparently was created by individuals who said they were Christians.

I believe that all religions and all religious institutions, leaders and followers are human and, therefore, imperfect or flawed. They all have their positive qualities, and they all have their negative or sinful qualities. We have been seeing too much recently of the latter for Islam and Christianity. This hymn reminds us of their positive and common qualities.

Rev. Gertmenian also delivered the sermon that day, “”What Do Our Hearts Treasure?,” that will be covered in a subsequent post. The entire service, including the Processional Hymn and the sermon are available in streaming video on the web.

————————————————–

[1] This hymn was written on commission for the 300th anniversary in June 2011 of Green’s Farms Congregational Church of Westport, Connecticut. The most well-known lyrics for the “Munich” tune are “O Word of God Incarnate.”

The Importance of Protecting Foreign Diplomats and Diplomatic Missions

People who are the full-time representatives of their home countries in foreign countries fulfill important responsibilities. They represent the policies and interests of their own governments and peoples to the governments and peoples of the foreign countries. They gather information about the policies and interests of the foreign governments and peoples and report that information to the diplomats’ own governments. They also make recommendations on policies to their own governments. They do all of this on foreign soil without the protections of their own governments.[1]

International Law Regarding Protection of Foreign Diplomats and Missions

All states need such diplomatic presences in other countries and hence have a common interest in having their diplomats and diplomatic premises protected by the foreign governments. Indeed, as preamble to the Vienna Convention on Diplomatic Relations state, having a treaty setting forth such protections “contribute[s] to the development of friendly relations among nations, irrespective of their differing constitutional and social systems” and hence to “the maintenance of international peace and security” under the U.N. Charter.

These common interests have existed for a long time and were the motivation for the well established international practice and custom of providing special protection and immunity from criminal jurisdiction for ambassadors. By the time of the Congress of Westphalia in 1648, permanent legations were accepted as the normal way of conducting international business among sovereign States, and over the next century detailed rules emerged in relation to the immunity of ambassadors and their accompanying families and staff from civil as well as criminal proceedings, the inviolability of their embassy premises and their exemption from customs duties and from taxes. These rules of customary international law were described in detail by early writers such as Grotius (1625), Bynkershoek (1721) and Vattel (1758).

The first international treaty or other instrument codifying any aspect of diplomatic law was the Regulation adopted by the Congress of Vienna in 1815. Codification among States of immunities and privileges of diplomatic agents did not begin until the Havana Convention of 1928 drawn up among the States of the Pan-American Union and the Draft Convention drawn up in 1932 by the Harvard Research in International Law.

After the establishment of the United Nations in 1945, efforts to develop a comprehensive multilateral treaty on diplomatic relations began. The initial draft of such a treaty was produced in 1957, and its 1958 revision was the basis for the U.N. Conference on Diplomatic Intercourse and Immunities in Vienna, Austria in March and April of 1961. On April 18, 1961, this Conference concluded with the signing of the Convention on Diplomatic Relations, which entered into force on April 24, 1964, after 22 states had ratified the treaty.

Now 187 of the 193 members of the U.N. are parties to this treaty. Its success may be ascribed first to the fact that the central rules regulating diplomatic relations had been stable for over 200 years. An embassy’s basic functions of representing the sending State and protecting its interests and those of its nationals, negotiation with the receiving State, observing and reporting on conditions and developments there remained and still remain unaltered. In addition, because the establishment of diplomatic relations and of permanent missions takes place by mutual consent, every State is both a sending and receiving State. Its own representatives abroad are in a sense hostages who may on a basis of reciprocity suffer if it violates the rules of diplomatic immunity, or may be penalized even for minor restrictions regarding privileges or protocol.

Article 22(2) of the Vienna Convention states, “The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” In addition, Article 29 provides, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

Recent Breaches of International Law Regarding Protection of Diplomats and Diplomatic Missions

The recent horrific attacks on U.S. diplomatic posts throughout the world, especially the attack on the U.S. Consulate in Benghazi, Libya and the murder of U.S. Ambassador J. Christopher (“Chris”) Stevens and three other U.S. citizens, are stark examples of the dangers facing all diplomats throughout history.

These attacks also represent breaches by many states of their important international legal obligation “to take all appropriate steps to protect the premises of the mission” and “to prevent any attack on [“the head of the mission or a member of the diplomatic staff of the mission”‘s ] . . . person, freedom or dignity.”

Ecuador’s Specious Allegation of the U.K.’s Breach of These Legal Obligations

These deplorable breaches also, in my opinion, show the utter speciousness of Ecuador’s complaint about the alleged failure of the United Kingdom to honor its important obligation with respect to the Ecuadorian Embassy in London after Ecuador had granted temporary lodgings, and subsequent diplomatic asylum, to Julian Assange.

Dispassionate analysis of the U.K.’s alleged written threat to invade the Embassy shows this not to be the case, as discussed in a prior post.

In addition, there were British police outside the Ecuadorian Embassy, but they were there to protect the Embassy and to arrest Assange if he tried to leave the Embassy. After all Assange had violated the terms of his bail by a British court by leaving a specific place west of London and surreptitiously entering the Embassy in order to avoid being arrested pursuant to a European Arrest Warrant to be sent to Sweden for investigations for his alleged criminal sexual conduct. In short, Assange was a fugitive from justice. Moreover, British police or other authorities never came close to entering the Ecuadorian Embassy. And no Ecuadorian diplomatic personnel were injured or even threatened.

By the way, negotiations between Ecuador and the U.K. to resolve their disputes over Assange apparently are deadlocked.

[1] The many duties of diplomatic personnel and the dangers they face were well stated on Minnesota Public Radio’s “The Daily Circuit” by Ronald E. Neuman, President of the American Academy of Diplomacy and a former U.S. Ambassador to Afghanistan, Algeria, and Bahrain.

The U.S. State Department Suggests Former President of Mexico Is Immune from Suit in U.S. Federal Court for Alleged Human Rights Violations

On September 16, 2001, ten anonymous Mexican nationals sued Ernesto Zedillo, the former President of Mexico, in U.S. federal court in New Haven, Connecticut. The complaint asserted claims for money damages in excess of $10 million under the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA) over the December 22, 1997, Mexican militia’s attack on civilians in the village of Acteal in Chiapas, Mexico. On January 6, 2012, Zedillo moved to dismiss the complaint on the ground that as a former Mexican president, he was immune from the lawsuit. All of this was explained in a prior post and a January 10th comment thereto.

Not much happened in this lawsuit until September 7, 2012, when the U.S. Government filed its suggestion that Zedillo should be immune from the suit and the case be dismissed. The Government did so in a letter from Harold Koh, the Department of State’s Legal Advisor and a former Dean of the Yale Law School, to the U.S. Department of Justice and in a formal pleading in the lawsuit entitled “Suggestion of Immunity Submitted by the United States of America.”

The letter stated that the U.S. State Department had determined that Zedillo was immune from the suit. It did so after “[t]aking into account principles of immunity articulated by the Executive Branch in the exercise of its constitutional authority over foreign affairs and informed by customary international law, and considering the overall impact of this matter on the foreign policy of the [U.S.].”

The letter and the formal filing set forth the following principles of the common law of officials immunity:

Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
Under the U.S. Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
A “sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all his actions.” (Emphasis added.)
For a former official, on the other hand, immunity “is based upon the character of that official’s conduct and extends only to acts taken in an official capacity” with a presumption that “actions taken by a foreign official exercising the powers of his office were taken in his official capacity.”
Such a presumption “is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.”
That presumption is corroborated when “the foreign government itself has asserted that the actions of its official were taken in an official capacity.”

Here, the Mexican government had asserted that Zedillo’s actions that are challenged in this lawsuit were taken in his official capacity as President of Mexico. Indeed, according to the letter, this assessment of Zedillo’s actions is confirmed by the allegations of the complaint.

The letter’s reasons and conclusion are endorsed by the Suggestion of Immunity Submitted by the United States of America.

A Duke University Law Professor, Curtis A. Bradley, observed that the courts had the authority to make the ultimate decision on immunity for former officials and that the courts usually side with the State Department’s determination. This was certainly true in the ATS and TVPA case against a former Somali general as seen in a prior post.

I cannot see any legitimate basis for any challenge to this suggestion of immunity and anticipate that the District Court will conclude that Zedillo is immune and dismiss the case.

U.S. District Court Decides that Former Somali Government Official Is Not Entitled to Common Law Immunity and Is Liable for $21 Million of Compensatory and Punitive Damages

Mohamed_ali_samater1 — Mohamed Ali Samantar

As discussed in a prior post, the U.S. Supreme Court in 2010 decided that former Somali General Mohamed Ali Samantar was not covered by the immunity provisions of the Foreign Sovereign Immunities Act (FSIA) and remanded the case to the U.S. District Court for the Eastern District of Virginia to determine if he was entitled to common law immunity.

This was in a case brought by four Somalis against Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

USDistCtEDVA — U.S. District Court, Alexandria, VA

After remand, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia in Alexandria [2] first decided that Samantar was not entitled to any common law immunity. She then decided that $21 million of compensatory and punitive damages were appropriate. Those decisions will now be reviewed.

No Common Law Immunity

On February 14, 2011, the U.S. Government provided the court with a letter from Harold Koh, the State Department’s Legal Adviser, stating that the Department had determined that Samantar did not enjoy immunity from this lawsuit. The key reason for this decision was the lack of any recognized Somali government that could assert or waive any immunity he might enjoy.

The formal U.S. filing with the court provided the relevant common law of immunity for former foreign government officials or what the filing called “Foreign Official Immunity Doctrine.” Here are the key points of that common law or doctrine without the filing’s citations of legal authority:

Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
“This deferential judicial posture was not merely discretionary [for the courts], but was rooted in the separation of powers.” Under the Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
“The immunity of a foreign state was, early on, generally understood to extend not only to the state, heads of state, and diplomatic officials, but also to other officials in an official capacity.”
Any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, there is no one that can assert such a claim or make such a waiver.
When a former foreign official becomes a resident of the U.S., as Samantar had since 1997, the U.S. has a right to exercise jurisdiction over that individual.
The U.S. Supreme Court in this case agreed with the government’s position that FSIA did not apply to the issue of immunity for current or former foreign government officials. Instead, that issue was left to the State Department, whose decisions should be accepted by the courts.

On February 15, 2011 (the day after the above government filing), Judge Brinkema issued a one-page order. It stated, “The government has determined that the defendant does not have foreign official immunity. Accordingly, defendant’s common law sovereign immunity defense is no longer before the Court . . . .” The court then directed the parties to agree upon a date to argue the remaining issues in the defendant’s dismissal motion.

Samantar’s motions for reconsideration of this order and for a stay pending appeal were denied. Nevertheless, he appealed to the Fourth Circuit (No. 11-1479), and on May 16, 2012, the appeal was argued to the appellate court, which as of September 13th had not yet issued its decision. In my opinion, he has virtually no chance of success on this appeal.

The Court’s Determination of Damages

The district court on August 28, 2012, determined that each of the seven plaintiffs was entitled to $1 million of compensatory damages plus $2 million of punitive damages for a total judgment of $21 million. How the court came to this determination is a fascinating story.

After the court’s rejection of his immunity defense, Samantar moved for summary judgment on the grounds that the latest complaint failed to state a claim for his secondary liability, that the TVPA did not retroactively apply to acts before 1991 and that the claims were untimely and nonjusticiable. That motion was denied on December 22, 2011.

Two days before the scheduled start of a jury trial on February 21, 2012, Samantar advised the court that he had filed for bankruptcy in the Eastern District of Virginia (1-12-bk-11085). The automatic stay of this case by the bankruptcy filing was soon lifted, and the start of the jury trial in the main case was rescheduled for February 23rd.

On February 23rd Samantar’s attorney informed the court that Samantar intended to take a default rather than contest liability and damages. The court then asked the defendant questions about this decision and was satisfied that he knowingly and voluntarily had conceded liability.

On August 28th the court filed its Memorandum Opinion that made extensive findings and legal conclusions regarding Samantar’s liability under theories of aiding and abetting and command responsibility.

After noting that compensatory damages were recoverable for physical and psychological injuries, the court found that the plaintiffs had provided the following “credible and compelling testimony of cognizable injuries stemming from the alleged violations:”

Plaintiff Yousuf had endured torture and seven years of imprisonment, largely in solitary confinement that had affected his memory and emotional health. He suffers from depression and nightmares and still relives the five-step length of his cell.
Plaintiff Baralle was tortured and barely escaped execution. He continues to experience pain and occasional shaking on the left side of his body as well as flashbacks. His two brothers were executed, and Baralle and his family have taken responsibility for raising his brothers’ children.
Plaintiff Gulaid went before a firing squad, but escaped death. He continues to suffer nightmares, flashbacks and anxiety, memory loss, high-blood pressure and poor vision.
Plaintiff Aziz and his sister testified about the extrajudicial executions of their father, who was the family’s breadwinner, and their brother.

The court then found that each of the three plaintiffs suing in their own capacity and each of the four decedents’ estates would be awarded compensatory damages of $1 million.

After finding that there was evidence of Samantar’s conduct having been intentional, malicious, wanton and reckless and that ATC and TVPA cases commonly awarding punitive damages, the court determined that $2 million of such damages for each of the seven claimants was appropriate. Such amount, said the court, reflected the “seriousness of [his] . . . uncontested conduct;” [eased] . . . any burden on plaintiffs in having to bring this case;” and recognized the award of substantial compensatory damages, the lack of any financial gain by Samantar and his prospective bankruptcy.

The execution of the judgment was stayed pending resolution of the bankruptcy case.

Conclusion

The ability of the plaintiffs to collect any significant amount of their $21million judgment is highly questionable. On April 3, 2012, the Chapter 7 Bankruptcy Trustee reported Samantar had no assets available for distribution to creditors, but for unknown reasons that report was withdrawn on June 11th.

On August 23rd the plaintiffs commenced an adversary proceeding against Samantar in the bankruptcy court to have his judgment debt to them determined to be a non-dischargeable debt for willful and malicious injury under Bankruptcy Code § 727 (1:12-ap-01356). If the bankruptcy court agrees, this merely keeps open the possibility of future collections on the judgment if Samantar obtains any future assets or income.Judge L:

[1] This case was supported by the Center for Justice and Accountability, an human rights NGO based in San Francisco, California.

[2] Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.

U.S. Supreme Court Decides that Foreign Sovereign Immunities Act Does Not Apply to Former Foreign Government Official

As discussed in a prior post, the U.S. Foreign Sovereign Immunities Act (FSIA) codifies the conditions for a U.S. court’s deciding that a “foreign state” as defined in that statute shall be granted immunity from a lawsuit in the U.S. courts.

The issue of whether the FSIA applied to individuals who had been officials of a foreign state was raised in a case brought by four Somalis against former Somali General Mohamed Ali Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).

The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

U.S. District Judge Leonie Brinkema of the Eastern District of Virginia[2] in August 2007 dismissed the case on the ground that Samantar was an “agency or instrumentality of” the state of Somalia and, therefore, entitled to immunity under FSIA (2007 U.S. Dist. LEXIS 56227). This judgment was reversed in January 2009 by the U.S. Court of Appeals for the Fourth Circuit (552 F.3d 371) on the ground that the FSIA did not cover individuals, after which the U.S. Supreme Court agreed to review the case.

In Yousuf v. Samantar, 560 U.S.__, 130 S. Ct. 2278, 176 L.Ed.2d 1047 (2010), the Supreme Court decided, 9 to 0, that the FSIA did not apply to government officials and that the immunity of such individuals was a matter of federal common law.[3]

In an opinion for the Supreme Court by Justice Stevens that was joined by Chief Justice Roberts and five Associate Justices (Kennedy, Ginsburg, Breyer, Alito and Sotomayor), Justice Stevens said there was nothing in the FSIA suggesting that “foreign state” should be read to include an official acting on behalf of that state. Indeed, according to the opinion, FSIA specifies that a foreign state “includes a political subdivision . . . or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or instrumentality,” §1603(b). Moreover, the statutory “agency or instrumentality” definition militates against its covering individuals.

The Court’s opinion also stated that FSIA’s history and purposes do not support an argument that the Act governs individual immunity claims. There is little reason to presume, said the Court, that when Congress codified state immunity, it intended to codify, sub silentio, official immunity. [4]

The Supreme Court remanded the case to the district court for its determination in the first instance as to whether Samantar was entitled to any common law immunity.

Upon remand, as will be discussed in a subsequent post, the district court decided that Samantar was not entitled to common law immunity and awarded the plaintiffs compensatory and punitive damages of $21 million.

[1] This case was supported by the Center for Justice and Accountability, a human rights NGO based in San Francisco, California.

[3] According to John B. Bellinger, III, a former Legal Adviser to the U.S. State Department, this Supreme Court decision vindicated the position of the Department’s Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by federal common law and customary international law as articulated by the Executive Branch, rather than by FSIA. But, says Bellinger, the decision will place a burden on that Office, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the U.S.

[4] Justices Alito, Thomas and Scalia each filed concurring opinions to say that the Court’s references to FSIA’s legislative history were unnecessary.