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Alarming Federal Government Fiscal Challenges

On August 29^th Dana Milbank of the Washington Post wrote an alarming column on the federal government’s fiscal challenges. Moreover, it was not his own opinion he was voicing, but rather that of the Semiannual Report of the nonpartisan Congressional Budget Office that was issued on August 27, 2014.

The CBO Report, Milbank says, shows that “the long-term fiscal disaster, predicted for some time, has crept into the short term.” Here are the particulars for that conclusion from the Report itself:

The foundation for the report is the CBO’s own economic forecast that “the economy will grow slowly this year . . . and then at a faster but still moderate pace over the next few years;” that “inflation is expected to remain below the Federal Reserve’s goal, and interest rates on Treasury securities . . . are projected to rise considerably.”
Another basic CBO assumption is “current laws governing federal taxes and spending generally remained unchanged.”
Federal debt held by the public will reach 74 percent of gross domestic product this year, more than twice what it was at the end of 2007 and higher than in any year since 1950. In a decade, it will hit 77 percent; in 25 years, 100 percent.
“85 percent of the federal government’s spending increases between now and 2024 will be consumed by just three items: Social Security (which will claim 28 percent of the increase), Medicare and other health-care programs (32 percent) and interest on the debt (25 percent). Spending on everything else — military and domestic programs alike — would fall to the lowest proportion of the economy since at least 1940, when such statistics were first collected.”
“The persistent and growing deficits that CBO projects . . . would have serious negative consequences, including . . . Increased federal spending for interest payments, Restraining economic growth in the long term, Giving policymakers less flexibility to respond to unexpected challenges, and Eventually increasing the risk of a financial crisis (in which investors would demand high interest rates to buy the government’s debt).”

These problems, says Milbank, will come “because of the cowardice of leaders on both sides, who have avoided serious changes to the tax code and to Medicare and the other ‘mandatory’ spending programs.”

Milbank’s comments came before the release of a report by Northwestern University economist, Robert Gordon, claiming that the CBO’s modest projection of U.S. economic growth over the next decade is unattainable. Gordon for several years has argued that reduced labor productivity, reduced labor market participation and meager capital investment have adversely affected the U.S. economy’s ability to grow. Thus, under Gordon’s analysis, the fiscal challenges facing the federal government will only be worse.

Pope Francis Urges Swift Beatification of Salvadoran Archbishop Óscar Romero

On March 24, 1980, Oscar Romero, the Archbishop of San Salvador, was assassinated while saying mass at a chapel in that city because of his preaching the Gospel and denouncing the Salvadoran regime’s violations of the human rights of his people.

I have been hoping that the Roman Catholic Church officially would recognize him as a saint, something many people in El Salvador and around the world, including this Protestant Christian, already have done unofficially. [1]

Now over 34 years later, on August 18, 2014, Pope Francis said that Romero’s beatification (one of the Church’s preconditions for sainthood) [2] should happen swiftly. That was the conclusion drawn by many from the Pope’s answer to a journalist’s question at an informal press conference on the papal plane’s return flight to Rome after the papal visit to South Korea.[3] Here is that answer in the Vatican’s official English translation:

Pope Francis & Journalists, August 18, 2014 (Photo--Daniel Dal Zennaro/European Pressphoto Agency) — Pope Francis & Journalists, August 18, 2014 (Photo–Daniel Dal Zennaro/European Pressphoto Agency)

“The process [for the beatification of Romero] was at the Congregation for the Doctrine of the Faith, blocked “for prudential reasons”, so they said. Now it is unblocked. It has been passed to the Congregation for Saints. And it is following the usual procedure for such processes. It depends on how the postulators move it forward. This is very important, to do it quickly.”
“What I would like is a clarification about martyrdom in odium fidei, whether it can occur either for having confessed the Creed or for having done the works which Jesus commands with regard to one’s neighbour. And this is a task for the theologians. They are studying it. Because after him [Romero] there is Rutilio Grande [[4]] and there are others too; there are others who were killed, but none as prominent as Romero. You have to make this distinction theologically.”
“For me Romero is a man of God, but the process has to be followed, and the Lord too has to give His sign… If He wants to do it, He will do it. But right now the postulators have to move forward because there are no obstacles.”

Analyzing this statement first requires an examination of the Roman Catholic Church’s structure and procedures regarding beatification and of the history of the “cause” for such status for Romero.

First, Pope Francis’s recent statement implicitly says that he does not have the authority to make the beatification decision himself. Instead, under the Church’s Apostolic Constitution (Pastor Bonus or Good Pastor) two parts of the Roman Curia (the Congregation for the Cause of Saints (CCS) and the Congregation for the Doctrine of the Faith (CDF)) have to make certain decisions before a recommendation for beatification comes to the Pope for approval or disapproval. [5]

Before the CCS enters the picture, however, a candidate for beatification must be recommended for that honor by the bishop of the diocese where the individual died after a thorough investigation (initiated only after at least five years after the individual’s death) establishing his or her theological virtues (faith, hope and charity) and cardinal virtues (prudence, justice, temperance and fortitude) and the performance of a “miracle” (an event that can be witnessed by the senses but is in apparent contradiction to the laws of nature). If the candidate is a martyr, however, a miracle is not required for beatification, but is for sainthood. (Emphasis added.)

The bishop’s conclusion and documentation then is submitted to the CCS, which has 34 members (cardinals, archbishops and bishops), one promotor of the faith (prelate theologian), five relators, 83 consultants and a staff of 23; it is headed by Prefect Cardinal Angelo Amato. The CCS is charged with conducting a rigorous examination into the life and writings of an individual to determine if he or she demonstrates a heroic level of virtue or suffered martyrdom. A CCS member is appointed Postulator by the CCS to oversee all aspects of the cause at the congregational level. With the assistance of a member of the congregational staff (a Relator), the Postulator prepares the “Positio” or summary of the documentation relating to the merits of the individual’s cause. The “Positio” is then subjected to an examination by nine theologians, and if a majority of them view the “Positio” positively, it then goes to examination by cardinals and bishops who are members of the CCS. If the latter group is favorable to the cause, the head or “Prefect” of the CCS presents the entire cause to the Pope. If the Pope then approves the cause, he authorizes the CCS to draft an appropriate decree, which eventually is read and promulgated.

Apparently during this process the CCS may submit certain issues to the CDF, which has 23 members (cardinals, archbishops and bishops), 28 consultants and a staff of 47; the CDF is headed by Prefect Cardinal Gerhard Ludwig Müller. Under the previously mentioned Apostolic Constitution the CDF is charged “to protect and safeguard the doctrine on faith and morals . . . in things that touch this matter in any way” (Art. 48) and to help “the bishops, individually or in groups, in carrying out their office as authentic teachers and doctors of the faith, [including] the duty of promoting and guarding the integrity of that faith” (Art. 50). I assume this must have happened because the Pope stated that the CDF had blocked the beatification process for lack of proof of Romero’s ‘”prudence,” one of the required cardinal virtues for such status.

Second, the history of the process for Romero’s beatification[6] sheds light on Pope Francis’ recent remarks:

The process was started in 1993 with the Archbishop of San Salvador’s announcement of his intent to proceed and with the CCS’ permission to proceed. By November 1996 the archdiocesan investigation of the cause was complete when the Archbishop approved the investigation’s findings and sent documentation to the CCS, and by 1998 all the necessary records had been submitted to the Congregation.

In 2000, pursuant to an objection by Colombian Cardinal Alfonso Lopez Trujillo, who expressed concerns about Romero’s association with Liberation Theology, Romero’s cause was investigated by the . . . CDF,” then headed by Cardinal Joseph Ratzinger, who later was elected Pope Benedict XVI. Between 2000 and 2005, the CDF studied the writings, sermons, and speeches of Archbishop Romero to ensure that they were free from doctrinal error. In 2001, Bishop Vincenzio Paglia, the initial Postulator of Romero’s cause, held a special congress in Italy, bringing together experts and theologians to try to determine if Archbishop Romero’s actions and written and spoken words were within the authorized teaching of the Church. Eventually the CDF concluded that “Romero was not a revolutionary bishop, but a man of the Church, the Gospel and the poor.”

Subsequently the cause was again referred to the CDF apparently on complaint by certain Latin American cardinals who demanded a study of Romero’s concrete pastoral actions. Thereafter the cause apparently was neglected and stalled.

Shortly after the inauguration of Pope Francis in March 2013, Postulator Paglia publicly reported that the Pope in a private audience on April 20, 2013, told him that the Pope was authorizing the beatification process to proceed. Paglia said that the process had been “unblocked.”

The Pope’s recent comment that at some point the CDF had concluded that Romero lacked “prudence” has been interpreted as concern that Romero had Marxist ideas. Another commentator stated, the CDF “had questioned whether the Salvadoran prelate qualified as a martyr, since his assassins clearly had political motives. Was the archbishop killed because of his faith, or because of his political involvements? And were his political activities entirely inspired by his faith? Those were the questions that complicated the cause.”

Third, the Pope said the blocking of the process by the CDF had been removed and there were now no doctrinal problems, but it is not totally clear when, why and how that happened. Apparently, as just stated, it was a decision by Pope Francis himself in April 2013, but details are lacking.

Fourth, the Pope said that he wanted clarification on whether martyrdom in ‘odium fidei’ (out of hate for the faith) is for confessing the [Roman Catholic] credo or for performing the works that Jesus commands us to do for our neighbors and that theologians were now studying this issue. It, however, was unclear as to whether this was being done by the CDF or the CCS. In either event, another commentator said that official martyrdom traditionally has been limited to those who were killed as persecution for their Catholicism. Indeed, this is the traditional test known as ‘odium fidei’ (out of hate for the Catholic faith) while death for the cause of Christian justice—sometimes called “odium iustitiae”— is currently a subsidiary test and potentially could be established as an alternative formula to prove martyrdom.

Fifth, the Pope’s recent comments made it very apparent that he supported Romero’s beatification. He called Romero “a man of God” and said that it was “very important, [for the postulators] to do it [their work] quickly.” I also thought the Pope impliedly endorsed the idea that martyrdom includes performing “the works which Jesus commands with regard to one’s neighbour“ (“odium iustitiae”), which is exactly what Romero was doing and why he was assassinated.

For example, Julian Filochowski, chairman of the Archbishop Romero Trust, said the Pope’s recent comment was “reaffirming in public what he’s said in private: that he hopes this process for the beatification of Romero will be dealt with and come to a speedy conclusion.” Filochowski also said, “Archbishop Romero was never the leftist some supposed him to be. His theology was essentially the theology of the Beatitudes [the teachings that begin with ‘blessed are the poor in spirit.’]”

Indeed, during his brief time as Pope, Francis has repeatedly discussed Romero and his beatification with visitors. Just after his inauguration, he “received several guests who took up Romero with the new pope, including the Anglican archbishop of York, who handed Pope Francis a “Romero Cross.” Francis met twice with the Argentine Nobel Peace laureate Adolfo Pérez Esquivel, and they discussed Romero and the desirability of a positive result in his canonization process. “[That] same topic . . . took center stage in . . . meetings with then Salvadoran president Mauricio Funes, with his successor Salvador Sánchez Cerén, . . . with the President of the Central American Parliament, who Francis assured that the canonization is ‘on the right path’” and when this May the Pope met with a delegation of Salvadoran bishops. Moreover, Romero’s message seems to fit the themes of Francis’ papacy, especially the emphasis on the poor from a son of the Latin American church.[7]

Sixth, Francis’ comment that “Romero is a man of God” should be particularly well-received in San Salvador, where the Church has just launched a “Romero Triennium”—a three year program of commemorations leading to the 100th anniversary of Romero’s birth in 2017. The theme for the first year is “Romero, Man of God.” Some suggest that the year 2017 would be a very opportune time for Pope Francis to go to El Salvador and proclaim Romero as “Santo Romero.”

Indeed, many in El Salvador were jubilant over the Pope’s statement. Said President Salvador Sanchez Ceren,”We are confident that in this land where Monsignor Romero lived, a determination of his martyrdom will receive his blessings.” The Minister of Foreign Affairs of El Salvador, Hugo Martínez, added, “We are delighted by the interest and determination of His Holiness, Pope Francisco, to advance the process of beatification of Archbishop Romero our spiritual leader.”[8]

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[1] I have written many posts about Romero, some of which have concerned the beatification process.

[2] Beatification is part of the Roman Catholic Church’s process towards sainthood. It recognizes the person as someone who has lived a faithful or holy life. After beatification they are known as ‘blessed’ and can be venerated by Catholics but, unlike canonization, it is not required. Upon a grant of beatification status, a separate process for canonization commences.

[3] This discussion of the Pope’s recent comments is based upon the following: Francis: “Romero is a man of God,” Super Martyrio (Aug. 18, 2014); Pope Francis’ Flights Yield Candid Conversations, N. Y. Times (Aug. 20, 2014); Palumbo & Cave, An Obstacle to Honoring an Archbishop Is Removed (N.Y. Times (Aug. 20, 2014); Borkett-Jones, Should Romero Be Canonized? Pope Francis Seems To Think so . . . ., Christianity Today (Aug. 19, 2014); Pope lifts beatification ban on Salvadoran Oscar Romero, BBC (Aug. 19, 2014); Lawler, The cause for beatification of Archbishop Romero: BBC botched the story, Catholic Culture (Aug. 19, 2014).

[4] Rutilio Grande was a Salvadoran priest and a friend of Romero who was murdered in 1978 for his vocal advocacy and actions to support the interests of the poor people of his country. In May 2013 Pope Francis reportedly told Salvadoran President Funes that Grande also should be beatified.

[5] This account of the two congregations is based upon the English language summary by the U.S. Conference of Catholic Bishops. Amplification and correction, especially on this account, from others more knowledgeable on this subject would be greatly appreciated.

[6] This summary of the history is based upon Pope Greenlights Romero Beatification, Super Martyrio (April 21, 2013); Who “Blocked” Romero’s Cause, Super Martyrio (April 29, 2013); Clear path for Romero at CCS, Super Martyrio (Nov. 22, 2013); New push for Archbishop Romero, Super Martyrio (April 25, 2014); Saint Romero in two strokes, Super Martyrio (May 5, 2014); Front row with Francis, Super Martyrio (May 30, 2014); Romero in the age of Francis, Super Martyrio (June 29, 2014); Francis: “Romero is a man of God,” Super Martyrio (Aug. 18, 2014). Super Martyrio is a blog created and maintained by a Salvadoran-American lawyer in California to follow news about Romero in support of the cause for Romero’s beatification and canonization. Muchas gracias!

[7] Before becoming Pope, Sr. Jorge Mario Bergoglio as Archbishop of Buenos Aires and as Cardinal made statements and attended events honoring Romero. In addition, Francis’ two papal predecessors have made similar comments. Saint John Paul II discussed Archbishop Romero in seven different public speeches/audiences. The most famous of these was a 1983 mass in San Salvador where he called Romero a “zealous pastor, whom love of God and service of brethren drove to surrender his life in a violent manner.” Saint Benedict XVI spoke about Romero during three different public events, including an in-flight press conference after a 2007 trip to Brazil, during which he said, “That Romero as a person merits beatification, I have no doubt … Archbishop Romero was certainly an important witness of the faith, a man of great Christian virtue who worked for peace and against the dictatorship, and was assassinated while celebrating Mass. Consequently, his death was truly ‘credible’, a witness of faith.”

[8] Jubilation in El Salvador by Pope announcement on beatification of Archbishop Romero, La Pagina (Aug. 19, 2014).

U.N. Human Rights Committee’s Concluding Observations on U.S. Human Rights

As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and the events leading up to the Committee’s evaluation. Another post looked at the Committee’s recent hearings regarding U.S. human rights.

Now we examine the Committee’s report of concluding observations that resulted from the hearings and all the evidence on that subject.

The Committee’s Concluding Observations[1]

After considering the written materials and the testimony and remarks at the hearing, on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America). Given the hostile nature of the Committee members’ comments during the hearing, it is not surprising that the report was very critical of the U.S.[2]

With respect to various topics, the Committee expressed its regrets or concerns about the U.S. record and then made the recommendations outlined below.

Applicability of the Covenant at national level.[3] The U.S. should: “(a) Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances . . . .(b) [I]dentify ways to give greater effect to the Covenant at federal, state and local levels, taking into account that the obligations under the Covenant are binding on the State party as a whole. . . . (c) [E]nsure that effective remedies are available for violations of the Covenant, including . . . proposing to the Congress implementing legislation to fill any legislative gaps. . . . [and considering] acceding to the Optional Protocol to the Covenant providing for an individual communication procedure. [4] (d) Strengthen and expand existing mechanisms mandated to monitor the implementation of human rights at federal, state, local and tribal levels . . . . (e) Reconsider its position regarding its reservations and declarations to the Covenant with a view to withdrawing them.”[5]

Accountability for past human rights violations. The U.S. should: “[E]nsure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, [6] are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. [7] The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.”

Racial disparities in the criminal justice system and Racial profiling. The U.S. should: “[R]obustly address racial disparities in the criminal justice system . . . [and] effectively combat and eliminate racial profiling by federal, state and local law enforcement officials . . . .”[8]

Death penalty. The U.S. should: “(a) take measures to effectively ensure that the death penalty is not imposed as a result of racial bias; (b) strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage; (c) ensure that retentionist states [those that maintain the death penalty] provide adequate compensation for the wrongfully convicted; (d) ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution; [9] (e) consider establishing a moratorium on the death penalty at the federal level and engage with retentionist states with a view to achieving a nationwide moratorium;” [f] Consider acceding to on the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty on or before July 11, 2116, the 25^th anniversary of its entry into force.

Targeted killing using unmanned aerial vehicles (drones). The U.S. should: “revisit its position regarding legal justifications for the use of deadly force through drone attacks [and] . . . (a) ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including in particular with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict; (b) subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used; (c) provide for independent supervision and oversight over the specific implementation of regulations governing the use of drone strikes; (d) in armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.”

Gun violence. The U.S. should: “[T]ake all necessary measures to abide by its obligation to effectively protect the right to life. . . . [including] (a) continue its efforts to effectively curb gun violence, including through the continued pursuit of legislation requiring background checks for all private firearm transfers in order to prevent possession of arms by persons recognized as prohibited individuals under federal law . . . ; and (b) review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when using deadly force in self-defence.”

Excessive use of force by law enforcement officials. The U.S. should: “(a) step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers; (b) ensure that the new CBP [U.S. Customs and Border Protection] directive on use of deadly force is applied and enforced in practice; and (c) improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.”

Legislation prohibiting torture. The U.S. should: “[E]nact legislation to explicitly prohibit torture, including mental torture, wherever committed and ensure that the law provides for penalties commensurate with the gravity of such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons. . . . [and] ensure the availability of compensation to victims of torture.”[10]

Non-refoulment [ban on returning persecuted to persecutor]. The U.S. should: “[S]trictly apply the absolute prohibition against refoulement under articles 6 and 7 of the Covenant, [11] continue exercising the utmost care in evaluating diplomatic assurances, and refrain from relying on such assurances where it is not in a position to effectively monitor the treatment of such persons after their . . . return to other countries and take appropriate remedial action when assurances are not fulfilled.”

Trafficking and forced labour. The U.S. should: “[C]ontinue its efforts to combat trafficking in persons, inter alia by strengthening its preventive measures, increasing victim identification and systematically and vigorously investigating allegations of trafficking in persons, prosecuting and punishing those responsible and providing effective remedies to victims, including protection, rehabilitation and compensation. [T]ake all appropriate measures to prevent the criminalization of victims of sex trafficking, including child victims, to the extent that they have been compelled to engage in unlawful activities. [R]eview its laws and regulations to ensure full protection against forced labour for all categories of workers and ensure effective oversight of labour conditions in any temporary visa program. [R]einforce its training activities and provide training to law enforcement and border and immigration officials, . . . [and] other relevant agencies. . . .”

Immigrants. The U.S. should: “review its policies of mandatory detention and deportation of certain categories of immigrants in order to allow for individualized decisions, to take measures ensuring that affected persons have access to legal representation, and to identify ways to facilitate access of undocumented immigrants and immigrants residing lawfully in the U.S. for less than five years and their families to adequate health care, including reproductive health care services.”

Domestic violence. The U.S. should: “[S]trengthen measures to prevent and combat domestic violence, as well as to ensure that law enforcement personnel appropriately respond to acts of domestic violence. [E]nsure that cases of domestic violence are effectively investigated and that perpetrators are prosecuted and sanctioned. [E]nsure remedies for all victims of domestic violence, and take steps to improve the provision of emergency shelter, housing, child care, rehabilitative services and legal representation for women victims of domestic violence. [T]ake measures to assist tribal authorities in their efforts to address domestic violence against Native American women.”

Corporal punishment. The U.S. should: “Take practical steps, including through legislative measures where appropriate, to put an end to corporal punishment in all settings. [E]ncourage non-violent forms of discipline as alternatives to corporal punishment and . . . conduct public information campaigns to raise awareness about its harmful effects. [P]romote the use of alternatives to the application of criminal law to address disciplinary issues in schools.”

Non-consensual psychiatric treatment. The U.S. should: “[E]nsure that non-consensual use of psychiatric medication, electroshock and other restrictive and coercive practices in mental health services is generally prohibited. Non-consensual psychiatric treatment may only be applied, if at all, in exceptional cases as a measure of last resort where absolutely necessary for the benefit of the person concerned provided that he or she is unable to give consent, for the shortest possible time, without any long-term impact, and under independent review. . . . [P]romote psychiatric care aimed at preserving the dignity of patients, both adults and minors.”

Criminalization of homelessness. The U.S. should: “[E]ngage with state and local authorities to: (a) abolish criminalization of homelessness laws and policies at state and local levels; (b) ensure close cooperation between all relevant stakeholders . . . to intensify efforts to find solutions for the homeless in accordance with human rights standards; and (c) offer incentives for decriminalization and implementation of such solutions, including by providing continued financial support to local authorities implementing alternatives to criminalization and withdrawing funding for local authorities criminalizing the homeless.”

Conditions of detention and use of solitary confinement. The U.S. should: “[M]onitor conditions of detention in prisons, including private detention facilities, with a view to ensuring that persons deprived of their liberty be treated in accordance with the requirements of articles 7 and 10 of the Covenant [12] and the UN Standard Minimum Rules for the Treatment of Prisoners. . . . [I]mpose strict limits on the use of solitary confinement, both pretrial and following conviction, in the federal system, as well as nationwide, and abolish the practice in respect of anyone under the age of 18 and prisoners with serious mental illness. . . . [B]ring detention conditions of prisoners on death row in line with international standards.”

Detainees at Guantanamo Bay. The U.S. should: “[E]xpedite the transfer of detainees designated for transfer, including to Yemen, as well as the process of periodic review for Guantánamo detainees, and ensure either their trial or immediate release, and the closure of the Guantánamo facility. [E]nd the system of administrative detention without charge or trial and ensure that any criminal cases against detainees held in Guantánamo and military facilities in Afghanistan are dealt with within the criminal justice system rather than military commissions and that those detainees are afforded the fair trial guarantees enshrined in article 14 of the Covenant.” [13]

NSA surveillance. The U.S. should: “(a) take all necessary measures to ensure that its surveillance activities, both within and outside the [U.S.], conform to its obligations under the Covenant, including article 17; [14] in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance; (b) ensure that any interference with the right to privacy, family, home or correspondence be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise specifying in detail the precise circumstances in which any such interference may be permitted; the procedures for authorizing; the categories of persons who may be placed under surveillance; limits on the duration of surveillance; procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse; (c) reform the current system of oversight over surveillance activities to ensure its effectiveness, including by providing for judicial involvement in authorization or monitoring of surveillance measures, and considering to establish strong and independent oversight mandates with a view to prevent abuses; (d) refrain from imposing mandatory retention of data by third parties;(e) ensure that affected persons have access to effective remedies in cases of abuse.”

Juvenile justice and life without parole sentences. The U.S. should: “prohibit and abolish all juvenile life without parole sentences irrespective of the crime committed, as well as all mandatory and non-homicide related sentences of life without parole. . . . [15] ensure that all juveniles are separated from adults during pretrial detention and after sentencing and that juveniles are not transferred to adult courts. . . . [encourage] states that automatically exclude 16 and 17 year olds from juvenile court jurisdictions . . . to change their laws.”

Voting rights. The U.S. should: “ensure that all states reinstate voting rights to felons who have fully served their sentences, provide inmates with information about their voting restoration options and remove or streamline lengthy and cumbersome state voting restoration procedures, as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. [T]ake all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters resulting in de facto disenfranchisement. [P]rovide . . . full voting rights of residents of Washington, D.C.”

Rights of indigenous people. The U.S. should: “adopt measures to effectively protect sacred areas of indigenous peoples against desecration, contamination and destruction and ensure that consultations are held with the communities that might be adversely affected by State party’s development projects and exploitation of natural resources with a view to obtaining their free, prior and informed consent for the potential project activities.”

Other. The U.S. should: “widely disseminate the Covenant, the text of the . . . [recent U.S. report to the Committee], the written responses that . . . [the U.S.] has provided in response to the list of issues drawn up by the Committee and the present concluding observations so as to increase awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations . . . [in the U.S.] as well as the general public.” “[For] its fifth periodic report, . . . continue its practice of broadly consulting with civil society and non-governmental organizations. [P]rovide, within one year, relevant information on its implementation of the Committee’s recommendations regarding accountability for [past human rights violations, gun violence, detainees at Guantanamo Bay and NSA surveillance]. [Submit] its next periodic report . . . [on March 28, 2019 with] specific, up-to-date information on all . . . [the Committee’s] recommendations and on the Covenant as a whole.”

Conclusion

One of the overriding issues in the Committee’s review was the geographical coverage of the entire treaty, whether it applies to U.S. conduct outside the U.S. territory, but where it has jurisdiction. The proper conclusion to this issue, in this blogger’s opinion, is that it does so apply or does have extraterritorial application. This conclusion was succinctly stated by the Committee’s Chairperson, Sir Nigel Rodley, during the hearing as noted in a prior post.

Essentially the same conclusion was reached in an October 2010 memo by Harold Koh, then the U.S. State Department’s Principal Legal Adviser.[16] After what he described as an “exhaustive review,” he stated, “an interpretation of Article 2(1) [of the ICCPR] that is truer to the Covenant’s language, context, object and purpose, negotiating history, and subsequent understandings of other States Parties, as well as the interpretations of other international bodies, would provide that in fact, . . . [a] state incurs obligations to respect Covenant rights — is itself obligated not to violate those rights through its own actions or the actions of its agents– in those circumstances where a state exercises authority or effective control over the person or context at issue.”[17]

Civil society organizations in the U.S. lauded the Committee’s “scathing report” and characterized the review as an opportunity for the Obama Administration to meaningfully improve its human rights legacy. The Electronic Frontier Foundation, among other groups, welcomed the Committee’s explicit recognition of the extraterritorial nature of the State’s obligations and its specific recommendations regarding surveillance, and urged immediate implementation by the United States.

The U.S. press coverage of this important international critique of U.S. human rights was pathetic. I did not find any such coverage in the Washington Post and the Wall Street Journal, two respected national newspapers.

The New York Times, on the other hand, had limited coverage. Before the hearings, the Times published one article on the then likely U.S. rejection of the treaty’s having extraterritorial effect along with the actual text of the contrary opinion on that issue by Harold Koh. Later the Times had an article about the first day of the Committee’s hearings that was primarily about the U.S.’ actual rejection of the treaty’s extraterritoriality with two short paragraphs about other issues. Finally the Times had an exceedingly short article about the Committee’s report that touched only on a few of its issues (drone strikes; the virtual lack of any U.S. investigation and prosecutions for alleged unlawful killings; use of torture and authors of legal memoranda purportedly justifying torture in the so called “war on terror;” and the call for publication of the U.S. Senate’s investigation of the CIA’s secret rendition program (turning over suspects to other countries)).

Finally, the Committee’s critique can be taken as an agenda for change by U.S. human rights advocates. Such change will not happen quickly given the dysfunctionality of the U.S. political system and culture. As President Obama frequently says, change does not come easily. —————————————————————–

[1] This summary of the Committee’s concluding observations is based upon the observations themselves plus extensive articles about them in the Guardian, Reuters, Human Rights Watch, Amnesty International, the American Civil Liberties Union and a very short New York Times article.

[2] Before making its criticisms, the Committee noted its “appreciation [for] the many [U.S.] efforts undertaken, and the progress made in protecting civil and political rights.” The Committee then welcomed the U.S. Supreme Court’s abolition of the death penalty for offenders who were under the age of 18 when the crimes were committed (Roper v. Simmons (2005)); the U.S. Supreme Court’s recognition of extraterritorial habeas corpus for aliens detained at Guantanamo Bay (Boumediene v. Bush (2008)); the expansion of rights for such detainees (Presidential Executive Orders 13491 and 13493); and the U.S. President’s support of the U.N. Declaration of the Rights of Indigenous Peoples.

[3] This issue concerned Article 2(1) of the ICCPR, which states, “Each State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis added.)

[4] The Optional Protocol to the ICCPR allows alleged victims of an alleged violation by a State Party of any of the rights set forth in the Covenant to submit a communication of complaint to the Committee, and after it has received a response from that State Party, the Committee shall submit ”its views” [akin to an advisory opinion] on the matter to the alleged victim and State Party.

[5] The U.S. reservations and understandings to its ratification of the treaty were covered in a prior post.

[6] “Persons in command positions” presumably include former President George W. Bush, Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld.

[7] “Those who provided legal pretexts” presumably include John Yoo, Alberto Gonzalez and four other lawyers who in the George W. Bush Administration were authors of legal memoranda justifying the so-called “enhanced interrogation” techniques. At least some of these memoranda are available online. The issue of their legal responsibility for such memoranda has been raised in at least three proceedings. First, under Spain’s previous version of its universal jurisdiction statute, a Spanish court opened a criminal investigation regarding these six lawyers, but later the case was stayed when the Spanish court asked the U.S. for information about any U.S. investigation of such allegations. Second, Mr. Yoo was sued in U.S. federal court for money damages and declaratory relief by an individual who had been arrested and detained for interrogation in a military brig in the U.S. for three and a half years, but the U.S. Court of Appeals for the Ninth Circuit in May 2012 held that Mr. Yoo was entitled to immunity and thus reversed the district court’s denial of Yoo’s dismissal motion. Third, in January 2010, the U.S. Department of Justice’s Office of Professional Responsibility concluded that Yoo and another lawyer had used flawed legal reasoning in these memoranda, but that this had not constituted professional misconduct This issue also has been raised in other contexts. In the midst of all this, Yoo continues vigorously to assert the validity of the memoranda and thus his innocence.

[8] One of the Committee’s concerns that prompted this recommendation was, in the Committee’s words, “surveillance of Muslims undertaken by . . . the New York Police Department (NYPD) in the absence of any suspicion of wrongdoing.” On April 15^th (or nearly three weeks after the issuance of the Committee’s report), the NYPD announced that it was terminating this program. This decision was welcomed by Muslim Advocates and the Center for Constitutional Rights of New York City while lamenting that the NYPD did not say it was ending its broad surveillance practices.

[9] There is litigation in U.S. courts over lethal drugs used in executions under death penalty laws. In Oklahoma, for example, a state trial court on March 26, 2014, decided that a state law mandating secrecy for the identity of suppliers of such drugs was unconstitutional. On April 21^st the Oklahoma Supreme Court stayed two executions so that the court could resolve “grave constitutional claims.” Since then there has been an unseemly intra-state squabble over whether that court had the power to stay the executions with the Oklahoma Governor vowing to conduct the executions as previously scheduled, a state legislator introducing a resolution to impeach the court’s judges who voted for the stay and the Supreme Court itself on April 23rd vacating the stay.

[10] The U.S. has a criminal torture statute, 18 U.S.C. sec. 2340A. It states, “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.” (Emphasis added.) Thus, this criminal statute does not apply if the torture occurs in the U.S. In addition, the U.S. has the Torture Victims Protection Act (TVPA) that provides for a civil action for money damages by an “individual” who has been subjected to “torture” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the torture. (Emphasis added.) Thus, this statute does not apply if the torture is committed by someone acting under U.S. law.

[11] The ICCPR’s Article 6 bans arbitrary deprivation of life and any derogation from the genocide treaty while its Article 7 bans torture or cruel, inhuman or degrading treatment or punishment.

[12] The ICCPR’s Article 7 bans “torture . . . [and] cruel, inhuman or degrading treatment or punishment while its Article 10 requires all inmates to be “treated with humanity and respect for the dignity of the human person,” separation of accused persons from convicts and juveniles from adults and in facilities whose aims shall be “reformation and social rehabilitation” of inmates.

[13] Article 14 of the ICCPR contains detailed provisions that in the U.S. would be regarded as constitutional criminal due process rights.

[14] Article 17 of the ICCPR says “[e]veryone has the right to the protection of law against . . . arbitrary or unlawful interference with his privacy, family, home or correspondence, . . . [and] unlawful attacks on his honour and reputation.”

[15] The Committee’s report recognized with satisfaction that the U.S. Supreme Court had decided under the U.S. Constitution’s Eighth Amendment’s ban on “cruel and unusual punishment” that (a) sentences of life without parole for juveniles for non-homicide crimes were not permitted (Graham v. Florida (2010)); and (b) mandatory sentences of life without parole for juveniles for homicide were not permitted (Miller v. Alabama (2012)).

[16] Koh is one of the U.S.’ preeminent international lawyers. He has taught at the Yale Law School since 1985 except for his years as the State Department’s Legal Adviser (2009-2013) and as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor (1998-2001). He served as the Dean of the Yale Law School (2004-2009) and returned to Yale in 2013 as the Sterling Professor of International Law. He has received many awards and holds degrees from Harvard University (B.A. and J.D.) and the University of Oxford (B.A. and M.A.)

[17] The Koh memorandum also stated that the contrary 1995 opinion by the Department’s Legal Adviser was “not compelled by either the language or the negotiating history of the Covenant . . . [and] that the 1995 Interpretation is in fact in significant tension with the treaty’s language, context, and object and purpose, as well as with interpretations of importantU.S. allies, the Human Rights Committee and the ICJ [International Court of Justice], and developments in related bodies of law [and, therefore,] was no longer tenable.” Nevertheless, the U.S. continues to rely on the 1995 opinion for its resistance to extraterritorial application of the ICCPR. The Koh memorandum was published by the New York Times along with a discussion of the document a week prior to the Committee’s hearings, and it is safe to assume that copies of same were provided to all the Committee members before the hearings.

What Does the Way of the Cross Ask of Us? Mercy

The third theme of Lent at Minneapolis’ Westminster Presbyterian Church is mercy. We will review the Scripture passages and the sermon on this theme and then conclude with some personal reflections.

Scripture Passages

The Old Testament scripture for mercy was the Prayer of David in Psalm 86: 1-15 (New Revised Standard Version):

‘Incline your ear, O Lord, and answer me, for I am poor and needy.
Preserve my life, for I am devoted to you; save your servant who trusts in you.
You are my God; be gracious to me, O Lord, for to you do I cry all day long.
Gladden the soul of your servant, for to you, O Lord, I lift up my soul.
For you, O Lord, are good and forgiving, abounding in steadfast love to all who call on you.
Give ear, O Lord, to my prayer; listen to my cry of supplication.
In the day of my trouble I call on you, for you will answer me.
There is none like you among the gods, O Lord, nor are there any works like yours. All the nations you have made shall come and bow down before you, O Lord, and shall glorify your name.
For you are great and do wondrous things; you alone are God.
Teach me your way, O Lord, that I may walk in your truth; give me an undivided heart to revere your name.
I give thanks to you, O Lord my God, with my whole heart, and I will glorify your name forever. For great is your steadfast love toward me; you have delivered my soul from the depths of Sheol.
O God, the insolent rise up against me; a band of ruffians seeks my life, and they do not set you before them. But you, O Lord, are a God merciful and gracious, slow to anger and abounding in steadfast love and faithfulness.”

The New Testament scripture was Matthew 18: 21-35 (New Revised Standard Version):

“Then Peter came and said to [Jesus], “Lord, if another member of the church sins against me, how often should I forgive? As many as seven times?” Jesus said to him, “Not seven times, but, I tell you, seventy-seven times.
For this reason the kingdom of heaven may be compared to a king who wished to settle accounts with his slaves. When he began the reckoning, one who owed him ten thousand talents was brought to him; and, as he could not pay, his lord ordered him to be sold, together with his wife and children and all his possessions, and payment to be made. So the slave fell on his knees before him, saying, ‘Have patience with me, and I will pay you everything.’ And out of pity for him, the lord of that slave released him and forgave him the debt.
But that same slave, as he went out, came upon one of his fellow slaves who owed him a hundred denarii; and seizing him by the throat, he said, ‘Pay what you owe.’ Then his fellow slave fell down and pleaded with him, ‘Have patience with me, and I will pay you.’ But he refused; then he went and threw him into prison until he would pay the debt. When his fellow slaves saw what had happened, they were greatly distressed, and they went and reported to their lord all that had taken place.
Then his lord summoned him and said to him, ‘You wicked slave! I forgave you all that debt because you pleaded with me. Should you not have had mercy on your fellow slave, as I had mercy on you?’
And in anger his lord handed him over to be tortured until he would pay his entire debt. So my heavenly Father will also do to every one of you, if you do not forgive your brother or sister from your heart.”

The Sermon

The sermon by Rev. Dr. Timothy Hart-Andersen emphasized that “at the heart of Christianity is the discipline of forgiveness.”

“From birth to death,” the sermon continued, “the life of Jesus is framed in forgiveness. Remember John the Baptizer preaching forgiveness to prepare for the coming Messiah? Remember the prayer Jesus taught [us]: ‘Forgive us, as we forgive them.’ Remember how Jesus forgave the woman caught in adultery and challenged others to do the same? Remember the words of Jesus on the cross: ‘Forgive them, for they know not what they do?’”

“Ours is a religion born in that astounding cry from the cross for mercy for those who had hung him there. If the question this Lent is what does the way of the cross ask of us, the response surely includes forgiveness.”

“If anyone ever asks you what Christian faith is all about, a good place to start would be forgiveness. If someone ever asks you what you think God is like, quote Psalm 86: ‘The Lord is merciful and gracious, slow to anger and abounding in steadfast love.’”

In Matthew 18, “‘Peter asks how many times he should forgive someone who wrongs him – and we sense this is not a hypothetical question – and then Peter wonders aloud, ‘Seven times?’ No doubt he thinks he’s really stretching it to go that far.”

In response, Jesus says, “’Not seven times, but, I tell you, seventy-seven times,’ indicating that forgiveness should not be reckoned a scarce commodity. God’s mercy is abundant; ours can be, as well.”

“This is hard work, like climbing a mountain that seems to get taller and taller the higher you get. Temptations abound along the way. It would be easier to give up. The culture teaches us to want revenge, not mercy. It’s much more satisfying on the face of it to refuse forgiveness to someone who has wronged you, and instead get back at them. If forgiveness feels like an impossibility for us, then we’re thinking about it in precisely the right way; it should feel like that. It’s not easy.”

Rev. Hart-Andersen added, “Every one of us has had a ‘Peter moment’ in a relationship with a friend or life partner or co-worker, a time when we knew we should forgive, but we wondered how hard to try. Seven times? Jesus will have none of it. Genuine forgiveness is much more extravagant; it takes us beyond anything we might consider reasonable. The truly merciful give up any desire for vengeance; let go of any need to come out on top; release any longing to satisfy old grudges; and, relinquish any secret hope for the thrill of nursing anger.”

“We tend to think of forgiveness as something we offer others in order to free them from the guilt of what they’ve done. That’s the short-sighted view of mercy. In the long run, it’s not done for the one who wronged us; it’s for our own sake. Our future is held hostage until we forgive. In offering mercy we free ourselves of the millstone hung around our neck by anger or desire for vengeance or the need to win.”

“Forgiveness in the eyes of Jesus is not about counting up the wrongs or keeping track of damage down and being properly compensated; on the contrary, it’s a matter of setting ourselves free of the need to do that. At stake is the possibility of recovering our own life by letting go of the anger or hurt that has a hammerlock on us.”

“Nothing is more corrosive to a relationship, and to our hearts, than unwillingness to forgive, and nothing brings more grace into a relationship, and into our hearts, than when people freely show mercy to one another.”

“It’s the way of the cross, the path we follow this Lenten season, and it leads, in the end, to life.”

Conclusion

Peter’s comments in Matthew 18: 21 could be read narrowly as saying if one person (another member of the church) commits one sin against Peter, then how often should Peter forgive that one person for that one sin.

Peter’s own answer to that question (seven times) may have been seen by him as overly generous and unnecessary since at that time rabbis commonly said that forgiving someone three times was an acceptable maximum.[1]

Jesus’ response in Matthew 18: 22, in my opinion, was not just upping the ante in a numbers game. Rather Jesus was saying that counting the number of acts of forgiveness is the wrong approach. In so doing, I believe, Jesus revealed a profound understanding of human psychology. Peter’s saying there is only one sin against him by another person is probably wrong, and in fact Peter probably believes there are other sins as well. Moreover, because we are all weak, the sense of anger Peter must feel over a wrong done to him may erupt again and again, often when he least expects it. Therefore, forgiveness of the other is always unfinished business, and repeated acts of forgiveness may be necessary.

The parable of the king and his slave starts out with the slave’s debt of 10,000 talents, which at the time could be seen as the largest amount imaginable. Indeed, it exceeded the annual taxes for all of Syria, Phonecia, Judea and Samaria. It would be impossible for any individual to repay. The amount of debt owed to the slave, on the other hand, represented 100 days of the wages of an ordinary laborer, still an impossible debt for the other slave to repay.[2]

Jesus’ parable in Matthew 18, according to one source, ended with verse 33 and was intended by Jesus to be about a Gentile tyrant, not about God. Verses 33 and 34, says this source, were added by Matthew to have the parable be about God.[3] But I find it impossible to accept the message of Matthew 18: 34 that God would send anyone to be tortured until he paid the debt.

This passage from Matthew about forgiveness of debts prompts the following comments and questions:

As a retired lawyer the “debt” language makes me think of normal commercial transactions where one party incurs an obligation or indebtedness to another person, and absent coercion or unfair advantage or subsequent bankruptcy, this is an obligation that should be honored. It should not be forgiven.
I vaguely recall some economists saying that U.S. bankruptcy law more liberally allowed for state-enforced forgiveness of debts than many other countries and thereby promoted U.S. economic growth by allowing people to start over economically. Do I recall this correctly? Is it a valid comment?
The notion of forgiving debts brings to mind the Jewish practice of the Jubilee Year, which I believe called for forgiveness of debts over land, slaves and indentured servants every 49 or 50 years. Is this a fair simplification of the practice? Is it still a practice today? Is it related to the Matthew passage in some way?
I struggle with the Presbyterian Church’s version of the Lord’s Prayer, which says “Forgive us our debts as we forgive our debtors.” The alternative language for the Lord’s Prayer that many others use— “forgive us our trespasses as we forgive those who trespass against us”—seems more appropriate to me because “trespass” is a wrong under the law and hence closer to the concept of sin. What am I missing?

Psalms 86: 1-15 for me is irrelevant to forgiveness or mercy other than the assertion in verse 5 that God is “good and forgiving.” Instead it is David’s prayer for protection and assistance when he was being pursued by his enemies (verses 7 and 14). The central verse, according to one commentary, is verse 11, where David asks God to teach him God’s way and to give him an “undivided” heart. The latter I see as an implicit confession that David’s heart is divided between God and something else.

I invite readers to help me answer these questions.

————————————–

[1] W. F. Albright & C. S. Mann, The Anchor Bible—Matthew at 223 (Garden City, NY; Doubleday & Co. 1871).

[2] VIII New Interpreter’s Bible at 380-83 (Nashville, TN; Abingdon Press 1995).

[3] Id.

U.S. Policy Implications of State Department’s Report on Cuban Human Rights

A prior post reviewed the U.S. State Department’s just-released 2013 Country Reports on Human Rights Practices while another post discussed its chapter on Cuba. Now we look at the implications of that report for U.S. policies regarding Cuba.

Some people assert that the negative aspects of Cuban human rights justify continuing U.S. hostility toward the island. They see the Cuban glass of human rights at least half empty. Notable among them is U.S. Representative Mario Díaz-Balart, a Cuban-American and a Republican Congressman from Miami, who remains a stalwart powerful defender of the embargo and other anti-Cuba policies of the U.S.

Others, including this blogger, reach the opposite conclusion based, in part, on the belief that the Cuban glass of human rights is half full.

As Rev. Raúl Suárez put it at the February 27^th briefing for the U.S. Congress, “Cuba has many problems but Cuba isn’t hell . . . . We have many good things that have been achieved [but] . . . Cuba is not the Kingdom of God.” Suárez added, “God . . . wants us [Cubans and Americans] to live like brothers and sisters.”[1]

Indeed, the humility expressed by Rev. Suárez should lead the U.S. to the same conclusion. As U.S. Secretary of State John Kerry said last month on release of the Human Rights Reports, “from our own nation’s journey, we know that [human rights] is a work in progress. Slavery was written into our Constitution before it was written out. And we know that the struggle for equal rights, for women, for others – for LGBT community and others – is an ongoing struggle.” Secretary Kerry admitted that we “know that we’re not perfect. We don’t speak with any arrogance whatsoever, but with a concern for the human condition.”

In evaluating Cuba’s mixed human rights record and deciding on U.S. policies regarding that country, that same humility should cause we in the U.S. to remember the U.S. immense superiority in economies and military might and the long-standing U.S. actions of hostility towards Cuba, including the following:

the U.S. usurpation of Cuba’s war for independence from Spain in the late 19th Century (what we in the U.S. call the “Spanish-American War“);
the U.S.’ making Cuba a de facto U.S. protectorate in the early 20th Century;
the U.S. support for the invasion of Cuba’s Bay of Pigs in 1961;
the U.S. threats of military action against Cuba during the pressured Cuban missile crisis of 1962;
the CIA’s hatching several plots to assassinate Fidel Castro when he was Cuba’s President;
the U.S. conduct of an embargo of Cuba over the last 50-plus years; and
the U.S. Government’s Commission on Assistance for a Free Cuba setting forth what amounted to a U.S. blueprint for taking over Cuba.

This history provides Cuba with many legitimate reasons to be afraid of the U.S. It, therefore, is understandable why Cuba has harshly treated what we call “dissidents” and what Cuba fears are or could be supporters of a U.S. takeover.

And we in the U.S. should know from our own history since 9/11 that societies and governments tend to clamp down on civil liberties when they fear outside interference or attacks.

Cuba’s regrettable lapses on human rights, though perhaps understandable in context, should not be a reason for continued U.S. hostility toward the island.

Therefore, as a prior post argued, improving Cuban human rights should be one of many items on an agenda for a comprehensive, mutually respectful negotiation between the two countries. The objectives of such a negotiation, in my opinion, should be restoration of full diplomatic relations; ending the U.S. embargo against Cuba;[2] terminating the unjustified U.S. designation of Cuba as a “State Sponsor of Terrorism;” [3] terminating the one-sided U.S. lease of Guantanamo Bay; and compensating owners for expropriation of property on the island as part of the Cuban Revolution.[4]

Such a negotiation, in my opinion, is in the interest of the U.S. Cuba poses no threat to the U.S. Our businesses and farmers would benefit economically from open relations with Cuba. Normalizing our relations with the island would be seen by most people in the world, especially Latin America, as a sign that the U.S. is a mature, rational country.

These thoughts were echoed by the Cuban religious leaders who held a U.S. congressional briefing on February 27^th. Joined by the President and CEO of Church World Service, [5] they reaffirmed their long-held opposition to the U.S. embargo of Cuba.

They also called “for the U.S. government to end the ban that prevents U.S. citizens from visiting Cuba and seeing the island for themselves; to take Cuba off the list of State Sponsors of Terrorism . . . ; and for the American government to open up trade and commerce in ways that support the small enterprises, cooperatives, and non-profits that are emerging on the island. Finally, the U.S. and Cuban governments ought to open a high level dialogue between our countries to normalize relations and discuss differences in ways that honor and respect the dignity of both nations.”

Before the commencement of such complicated negotiations, the U.S. President should commute the sentences of three of the Cuban Five to the 15-plus years they already have spent in U.S. jails and prisons and let them return to their home country. Similarly Cuba should commute the sentence of U.S. citizen Alan Gross to the time he already has spent in Cuban prison and allow him to return to the U.S.

Given the long period of hostility between the two countries and the apparent lack of movement toward negotiations, I believe that the assistance of a neutral third-party mediator would be helpful to both countries. Such a mediator, in my opinion, should be someone who is bilingual in English and Spanish with experience as an international mediator, who is in fact and perceived to be neutral and who has the time (and staff?) to make a major commitment to this process.

Such a mediator indeed could and should step forward and invite representatives of both countries to participate in mediated negotiations, rather than wait on them to agree on such a process.

——————————————

[1] Suárez is a Baptist pastor and the founder and director of the Martin Luther King, Jr. Center in Havana. When I visited the Center in 2007, Rev. Suárez told our group that he had founded the Center because he thought King’s philosophy of non-violence and social justice was relevant to Cuba, especially to Afro-Cubans. He also said that in 1984 he and other religious leaders met with then President Fidel Castro to protest the government’s endorsement of atheism (or scientific materialism) as limiting the space for churches, and after the collapse of the Soviet Union in 1989, Cuba abandoned that endorsement and provided more space for churches to participate in issues facing the island.

[2] Amnesty International, Human Rights Watch and former U.S. President Jimmy Carter also call for ending the U.S. embargo. So too does world opinion as evidenced by the U.N. General Assembly’s passing resolutions condemning the embargo for the last 22 years. The last such resolution in October 2013 was passed 188 to 2 with only the U.S. and Israel voting against it. A prior post to this blog also has argued for ending the embargo and summarized the 2011 General Assembly resolution against the embargo.

[3] This blog has reviewed the State Department’s asserted rationale for the “State Sponsor of Terrorism” designation and called it ridiculous for 2010, 2011 and 2012 and absurd for 2013. This blog also noted Cuba’s adoption of legislation against money laundering and terrorism financing and thereby negating one of the purported reasons for the designation.

[4] In a letter to President Obama that was reproduced in this blog, I called for the U.S. to terminate the Guantanamo Bay lease and for Cuba to compensate property owners for expropriating their property. A comprehensive review of this lease is found in Michael J. Strauss’ The Leasing of Guantanamo Bay.

[5] Church World Service was founded in 1946 with this mission: “Feed the hungry, clothe the naked, heal the sick, comfort the aged, shelter the homeless.” It now has 37 Protestant member communions all over the world.

The Extraordinary “Ordinary Grace”

The 53-year old Frank Drum in the novel, “Ordinary Grace,” begins his narration by saying that in 1961, when he was 13 years old, the deaths of his sister and four others in his small southern Minnesota town were not completely tragic. These deaths also brought him wisdom by “the awful grace” of God in accordance with a quotation from Aeschylus, a Greek playwright, that suffering and pain, “against our will, [bring us] . . . wisdom through the awful grace of God.” [1]

The reader thus immediately is faced with two terms: “ordinary grace” and “awful grace.” Do they mean the same? Or are they different concepts? And are they different from “divine grace”? The novel does not answer these questions.

Towards the end of the novel after many horrible deaths, Frank’s father, Rev. Nathan Drum, a Methodist minister, repeats the Aeschylus quotation. Frank responds with this pithy, skeptical question, “Awful?” Rev. Drum merely responds, “I don’t think it is meant in a bad way. I think it means beyond our understanding.” (P. 289.) That was the only other reference to “awful grace” I found in the novel.

Similarly the only time I found the term “ordinary grace” used was in Frank Drum’s description of a lunch at the church pastored by his father. The lunch was just after the funeral service for Ariel Drum, the pastor’s daughter and Frank’s sister. Rev. Drum was quietly composing himself for what everyone expected to be a thoughtful, lengthy prayer of grace before the meal was served. Ruth Drum, the pastor’s wife and the mother of Ariel and Frank, rudely interrupted the solemn silence. “For God’s sake, Nathan, can’t you, just this once, offer an ordinary grace?” (P. 269.) (Emphasis added.)

Everyone at the lunch was stunned into a nervous silence. Jake Drum, Frank’s younger and stuttering brother, broke the quiet and surprised his embarrassed parents and the others with these three words: “I’ll say grace.” Then Jake, after a brief stutter, prayed, “Heavenly Father, for the blessings of this food and these friends and our families, we thank you. In Jesus’ name, amen.” (P. 270.) (Emphasis added.)

Frank, who was startled and frightened by Jake’s announcing he would say the grace, afterwards looked at his brother “with near reverence and thought to myself, ‘Thank you, God.’” Frank also commented that this grace was “so ordinary there was no reason at all to remember it. Yet I have never across the forty years since it was spoken forgotten a single word.” (P. 270.) (Emphasis added.)

Therefore, a simple answer to the question about the meaning of “ordinary grace” is it was the simple prayer offered before lunch by an ordinary person, a young boy without any theological education.

But this is too simple an answer, in my opinion.

Immediately after saying this prayer, Jake’s stutter disappeared, and he told his brother that he thought he never would stutter again. Jake added that this change was a miracle that happened without his seeing a light or hearing a voice. Instead, Jake said he “wasn’t afraid anymore” and if “we put everything in God’s hands, maybe we don’t any of us have to be afraid anymore.” (Pp. 281-82.) Their mother concurred, saying, “it was a miracle by the grace of God.” (P. 292.) (Emphasis added.)

In other words, although the prayer itself may have been an “ordinary grace,” Jake’s being able to say it and its impact on his stuttering were examples of God’s grace or divine grace.

Another example of divine grace entering the lives of the people of this small town in 1961 through the words of an ordinary person was the sermon by Rev. Drum on the Sunday after Ariel’s death.

Rev. Drum said that the events of the past week had caused him to think about “the darkest moment in the Bible [when] Jesus in his agony on the cross cries out, ‘Father, why have you forsaken me?’” In “that moment of his bitter railing [Jesus] . . . must have felt betrayed and completely abandoned by his father, a father he’d always believed loved him deeply and absolutely. How terrible that must have been and how alone he must have felt. . . . Jesus . . . saw with mortal eyes, felt the pain of mortal flesh, and knew the confusion of imperfect mortal understanding.” (Emphasis added.)
Rev. Drum continued with a personal confession. “I see with mortal eyes. My mortal heart this morning is breaking. And I do not understand. I confess that I have cried out to God, ‘Why have you forsaken me?’” (Emphasis added.)
“When we feel abandoned, alone, and lost,” Rev. Drum added, “what’s left to us? What do I have, what do you have, . . . except to rail against God and to blame him for the dark night into which he’s led us, to blame him for our misery, to blame him and cry out against him for not caring? What’s left to us when that which we love most has been taken?”
“I will tell you what’s left, three profound blessings. In his first letter to the Corinthians [I Corinthians 13:13], Saint Paul tells us exactly what they are: faith, hope, and love. These gifts, which are the foundation of eternity, God has given to us and he’s given us complete control over them. Even in the darkest night, it’s still within our power to hold to faith. We can still embrace hope. And although we may ourselves feel unloved we can still stand steadfast in our love for others and for God. All this is in our control. God gave us these gifts and he does not take them back. It is we who choose to discard them.” (Emphasis added.)
“And in your dark night, I urge you to hold to your faith, to embrace hope, and to bear your love before you like a burning candle, for I promise that it will light your way.”
“And whether you believe in miracles or not, I can guarantee that you will experience one. . . . The miracle is this: that you will rise in the morning and be able to see again the startling beauty of the day.”
“I invite you, my brothers and sisters, to rejoice with me in the divine grace of the Lord and in the beauty of this morning, which he has given us.” (Pp. 194-95.) (Emphasis added.)

Frank commented that he “left the church that morning feeling, as I do to this day [40 years later], that I had experienced a miracle, the one promised by my father who had spoken a truth profound and simple.” (Emphasis added.)

For me, these examples and the rest of the novel suggest that there is no difference between ordinary grace and divine grace, which for Christians refers to acts of favor or gifts from God toward humans that we have not earned or do not deserve. Indeed, Saint Paul in his second letter to the Corinthians says, “we are ambassadors for Christ, since God is making his appeal through us.” (II Corinthians 5: 20.) This theological issue is left to the reader to ponder.

The novel reminds us that death comes into everyone’s life, often at unanticipated moments. In other words, death exists in the midst of life. The key issue for those affected by death of family members and friends is how do we respond. Funeral or memorial services always remind me that my days are numbered and that I do not know when my death will arrive. Therefore, I should live each day as if it were my last and be present in the moment. Despite this obvious conclusion, I too often do not live that way.

The novel also reminds us that children, here the 13-year old Frank and his younger brother Jake, can be strong and insightful even when faced with stressful events like the death of family members and friends. Indeed, the two boys seem stronger in some ways than their parents, at least in Frank’s account.

Of course, we are hearing the account of this year from only one participant, 40 years after the fact. We undoubtedly would have other perspectives if there were reports from at least the other members of Frank’s family.

Near the end of the novel Frank, now a high school history teacher, acknowledges these limitations of his account of that summer when he says that “when you look back at a life, yours or another’s, what you see is a path that weaves into and out of deep shadow. So much is lost. What we use to construct the past is what has remained in the open, a hodgepodge of fleeting glimpses . . . . [W]hat I recall of that . . . summer . . . is a construct of what stands in the light and what I imagine in the dark where I cannot see.” (P. 302.)

Indeed, Frank says, “there is no such thing as a true event. We know dates and times and locations and participants but accounts of what happened depend upon the perspective from which the event is viewed. . . . I’m aware that Jake and my father recall things I don’t and what we remember together we often remember differently. I’m sure that each of us has memories that for reasons our own we don’t share. Some things we prefer remain lost in the shadows of our past.”

“Ordinary Grace” offers an extraordinary exploration of grace and wisdom. The five deaths in one summer in a small town also allow the novelist’s mystery-writing skills to peak through. Reading the novel has many rewards.[2]

[1] A prior post expressed my objection to the use of this quotation in this novel.

[2] “Ordinary Grace” was the “January All-Church Book Read” at Minneapolis’ Westminster Presbyterian Church. The novelist, William Kent Krueger, is the author of the award-winning Cork O’Connor mystery series set in northern Minnesota. Now I want to read them.

Aeschylus on Suffering and Wisdom

The chorus in Agamemnon, a famous play by the Greek playwright Aeschylus (circa 525/524 BC—circa 456-455 BC) makes the following statement (in English translation):

“He who learns must suffer. And even in our sleep pain, which cannot forget, falls drop by drop upon the heart, until, in our own despair, against our will, comes wisdom through the awful grace of God.”

I encountered this statement in the excellent, fascinating contemporary novel Ordinary Grace by William Kent Krueger, about which I will comment in future posts. The statement supposedly was a favorite saying of the novel’s Rev. Nathan Drum, a Methodist minister in southern Minnesota in the 1960’s. The author Krueger has said that he has liked this quotation and always wanted to use it in one of his novels, and so he did by putting it into the mouth of Rev. Drum.

For me, the use of this quotation by Rev. Drum does not ring true to his character. I could not accept that a Methodist minister wanting to impart wisdom to his two sons in the U.S. in the 1960’s would use the words of a pre-Christian playwright, rather than words of Scripture.

When I posed this problem to Mr. Krueger, he said that as the novel explains, Rev. Drum originally was going to be a lawyer and, as the novel did not explicate, he had had a broad pre-law education, which exposed him to Aeschylus. This response does not satisfy me, a retired lawyer who had a broad pre-law education.

I also am troubled by the English translation’s reference to the “awful” grace of God. For me, the word “awful” is strongly negative with “horrible” as a synonym. When Krueger was responding to my question, he referred to an alternate meaning of “awful” as “full of awe.” In the novel towards its end after many horrible deaths, however, Rev. Drum repeats the quotation to his older son Frank, who asks skeptically, “Awful?” Rev. Drum merely responds, “I don’t think it is meant in a bad way. I think it means beyond our understanding.” (P. 289.) Again this response does not satisfy me as one coming from an individual supposedly knowledgeable about Aeschylus.

In my investigations of this quandary I discovered that the quotation was used in 1968 by U.S. Senator Robert F. Kennedy on the night of the assassination of Rev. Martin Luther King, Jr. Speaking to a crowd in Indianapolis, Indiana, Kennedy referred to his own grief at the 1963 murder of his brother, President John F. Kennedy. Robert then said, “My favorite poet was Aeschylus. He once wrote: ‘Even in our sleep, pain which cannot forget falls drop by drop upon the heart, until in our own despair, against our will, comes wisdom through the awful grace of God.’”

Kennedy went on to say that night in Indianapolis, “What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence or lawlessness; but love and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or they be black… Let us dedicate ourselves to what the Greeks wrote so many years ago: to tame the savageness of man and make gentle the life of this world.” (The quotation from Aeschylus was later inscribed on a memorial at the gravesite of Robert Kennedy following his own assassination.)

I certainly recalled that Robert Kennedy made an emotional and moving extemporaneous statement on the night of Rev. King’s assassination, but I did not remember the specifics. Learning the specifics helps me understand why novelist Krueger wanted to use the Aeschylus quotation in a novel, but, in my view, does not justify putting those words into Rev. Drum’s mouth seven years before the King assassination.

Moreover, the English translation is poetical and sounds profound, but is misleading on a simple analysis, in my judgment. First, is suffering a necessary condition for obtaining wisdom or without suffering is wisdom impossible? “No” is the obvious answer for me. Second, is suffering a sufficient condition for wisdom or is wisdom always a consequence of suffering? Again, “No” is the obvious answer to this question.

In my opinion, suffering sometimes (but not always) provides an opportunity to gain wisdom that sometimes (but not always) produces wisdom. That opens for me the broader and more important question of how does one learn from suffering or pain in one’s life.

My cursory research about Aeschylus reveals that he “was a deep, religious thinker. Few poets have ever presented evil in such stark and tragic terms, yet he had an exalted view of Zeus, whom he celebrated with a grand simplicity reminiscent of the Psalms, and a faith in progress or the healing power of time.” (Emphasis added.)

This source recognizes what I believe to be the polytheistic belief system of the ancient Greeks and casts doubt, in my opinion, on any attempt in our time to use this Aeschylus quotation to elucidate the Christian perspective of a Methodist pastor or anyone else.

Agamemnon is the first play in the trilogy The Oresteia, telling the bloody story of the family of Agamemnon, King of Argos. It begins with the triumphant return to Mycenae[1] of King Agamemnon from his victory in the Trojan War, as told by the town’s people (the chorus) and his wife, Clytemnestra. She was angry with the King because of his sacrifice of their daughter Iphigenia to assuage the Gods to stop a storm hindering the Greek fleet in the war and also because of his keeping a Trojan prophetess Cassandra as his mistress. Cassandra foretells of the murder of Agamemnon, and of herself, to the assembled townsfolk, who are horrified. The play ends with a prediction of the return of Orestes, son of Agamemnon, who will seek to avenge his father.

I earnestly seek responses from those who know the ancient Greek language and who can shed light on the previous English translation of the Aeschylus quotation by Edith Hamilton.[2] I also welcome comments from those who are knowledgeable about Aeschylus more generally and about Agamemnon specifically.

Provide new insights. Correct my errors.

[1] Mycenae is now an archeological site in Greece, located about 56 miles southwest of Athens in the northeastern part of the Peloponnese. Argos is 7 miles to the south; Corinth, 30 miles to the north. From the hill on which the palace was located, one can see the Saronic Gulf. In the second millennium B.C., Mycenae was one of the major centers of Greek civilization, a military stronghold that dominated much of southern Greece. A number of years ago I visited the impressive site.

[2] Here are two other English translations that I have found. First, Ian Johnston in 2002: “Zeus, who guided mortals to be wise, has established his fixed law– wisdom comes through suffering. Trouble, with its memories of pain, drips in our hearts as we try to sleep, so men against their will learn to practice moderation. Favours come to us from gods seated on their solemn thrones—such grace is harsh and violent.” Second, Anne Carson in 2009: “Yet there drips in sleep before my heart a grief remembering pain. Good sense comes the hard way. And the grace of the gods (I’m pretty sure) is a grace that comes by violence.”

Jurisdictional Black Hole for Certain Violent Crimes by Non-Indian Men Against Indian Women on Indian Reservations

Louis Erdrich in her prize-winning novel, The Round House, tells the story of the violent rape of a Native woman by a white man on an Indian reservation in North Dakota in 1988, and the resulting legal problem as to whether the federal or Native American courts had jurisdiction to investigate and prosecute the crime. This was discussed in a prior post.

This jurisdictional conundrum is not just a subject for fiction. It is a real problem in the U.S. today that would be addressed by a law now being debated in the U.S. Congress.

Introduction

In recent years a Southern Ute Indian woman married a white man, and they lived on the tribe’s reservation in southern Colorado. There she was subjected to frequent beatings and threats. Because her husband was white, the Southern Ute Tribal Police could not investigate and prosecute him. Because she was a Native American on tribal land, state authorities were powerless as well. Federal law enforcement did have jurisdiction, but they declined to do anything.

Later the husband came with a gun to the Southern Ute woman’s office at the federal Bureau of Land Management and opened fire and wounded a co-worker. The state officials arrested him, but only after a tape measure was used to determine the distance between the barrel of the gun and the point of the bullet’s impact in order to establish state jurisdiction.

This jurisdictional problem is addressed in a Senate bill (S.47), the Violence Against Women Reauthorization Act 2013 (VAWA 2013). This legislation would, for the first time, allow Native American police and courts to investigate and prosecute non-Indians who commit certain violent crimes against Native women on tribal land. The details are in section 904 [204(b)] of the bill.

The bill, in section 904 [204 (d)], also provides protections for the rights of those non-Indians who are accused of such crimes.

U.S. Senate Proceedings Regarding S.47

Last Thursday, February 7th, the Senate defeated, 65 to 34, an amendment to this bill offered by Senator Charles Grassley of Iowa. It would have placed more federal prosecutors and magistrates in Indian country for domestic violence and sexual assault cases and would have allowed tribes to petition a federal court for protective orders to exclude an abuser from Indian land. This was S.Amendt.14 to the bill.

On February 11th, the Senate rejected, 59-31, an amendment to the bill offered by Senator Tom Coburn of Oklahoma to delete the bill’s provisions granting additional powers to Indian courts. This was S.Amendt.13 to the bill.

Finally yesterday (February 12th) the Senate passed, 78-22, the bill with the support of 23 Republicans. Now it will be sent it to the House of Representatives.

Immediately afterwards, President Obama released a statement saying, “This important step shows what we can do when we come together across party lines to take up a just cause.” He added, “The bill passed by the Senate will help reduce homicides that occur from domestic violence, improve the criminal justice response to rape and sexual assault, address the high rates of dating violence experienced by young women, and provide justice to the most vulnerable among us.”

I want to thank Senator Leahy and his colleagues from both sides of the aisle for the leadership they have shown on behalf of victims of abuse. It’s now time for the House to follow suit and send this bill to my desk so that I can sign it into law.”

Proceedings in the House of Representatives Regarding S.47

Many of the House Republicans are believed to be opponents of the bill’s provisions on Indian courts.

However, 17 House Republicans on February 11th sent a joint letter to Speaker John Boehner and Majority Leader Eric Cantor urging the House to “immediately” reauthorize the Violence Against Women Act. The letter also said, “Now is the time to seek bipartisan compromise on the reauthorization of these programs” and such a bill “must reach all victims and perpetrators of domestic violence, dating violence, sexual assault and stalking in every community in the country,”

In addition Republican Representatives Tom Cole of Oklahoma and Darrell Issa of California have proposed an amendment to the bill that would offer non-Indian defendants a right to remove their case to a federal court in certain circumstances.

We now await House action on the bill. Its supporters should urge their Representatives to support the bill.

Conclusion

In my opinion, the current jurisdictional “black hole” is outrageous and needs to be eliminated as soon as possible. I have not seen any indication that anyone believes otherwise.

Instead, the opposition to this proposed legislation regarding violent crimes against Indian women purportedly is based on concern for the due process rights for any non-Indian man who is accused of such crimes in a tribal court.

I share those due process concerns as I would for any defendants under any new criminal statute. However, I do not know enough about the procedures and practices of tribal courts and of the quality of their judges to come to a reasoned conclusion on whether and how the bill might be amended to address any legitimate concerns on this issue. For an outsider, this should be something that Congressmen and women of all persuasions should be able to agree upon.

Dismissal of Spanish Criminal Case Against Judge Garzon for Alleged Bribery

As described in a prior post, Spanish Judge Baltasar Garzon has been charged with crimes in three separate cases.

One of the cases charged him with bribery in his dismissal of a tax fraud case against a top executive of Spain’s Banco Santander even though it appeared that neither the executive nor the bank paid anything to Judge Garzon personally. Instead, the bank had made a substantial gift to New York University (NYU) that supported several of its international programs. One of the programs was NYU’s hosting international visiting faculty (presumably including Judge Garzon who was a fellow at NYU in 2005.)

On February 13, 2012, as reported by El Pais and the New York Times, Spain’s Supreme Court dismissed this case on the ground that it was barred by the statute of limitations (by prescription, in Spanish legal parlance).