El Salvador – Page 8 – dwkcommentaries

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).

Developments in Using U.S. Immigration Law To Enforce International Human Rights

As noted in a prior post, U.S. immigration law provides at least two means of enforcing international human rights.

Removal or Deportation from the U.S.

Foreigners can be deported or removed from the U.S. if they “ordered, incited, assisted, or otherwise participated in genocide . . . or . . . any act of torture . . . or . . . any extrajudicial killing.” (Intelligence Reform and Terrorism Prevention Act of 2004 sec. 5501, 118 Stat. 3638, 3740 (2004).

Responsibility for enforcing these provisions lies in the Human Rights Violators and War Crimes Unit (HRVWCU) within the National Security Investigations Division (NSID) of the Homeland Security Investigations (HIS) Directorate of the U.S. Immigration and Customs Enforcement (ICE) of the Department of Homeland Security.

This unit conducts investigations focused on foreign human rights violations by individuals in the U.S. in an effort to prevent the U.S. from becoming a safe haven to those individuals who engage in the commission of war crimes, genocide, torture and other forms of serious human rights abuses from conflicts around the globe. Since fiscal year 2004, ICE has arrested more than 250 individuals for human rights-related violations under various criminal and/or immigration statutes. During that same period, ICE has denied more than 117 individuals from obtaining entry visas to the United States and created more than 20,000 subject records, which prevented identified human-rights violators from attempting to enter the United States. In addition, ICE successfully obtained deportation orders to physically remove more than 590 known or suspected human rights violators from the United States.

Currently, ICE is pursuing more than 1,900 leads and removal cases that involve suspected human rights violators from nearly 96 different countries.

Illustrating such cases are two former Salvadoran military officers, Carlos Eugenio Vides Casanova and Jose Guillermo Garcia,[1] and a former Guatemalan military officer, Pedro Pimentel Rios.

In 2012, an immigration judge ruled that Casanova could be deported for his role in multiple acts of killings and torture committed by the Salvadoran military, including the 1980 slayings of the four American churchwomen.

On February 6, 2014, the U.S. Board of Immigration Appeals (BIA) heard Casanova’s appeal from this decision. The main issue was his argument that the removal order was unjustified because the U.S. tacitly had approved the aggressive tactics of the Salvadoran military. In response the ICE attorney argued that U.S. support for the Salvadoran military did not excuse Casanova’s actions and that the U.S. repeatedly had demanded that the Salvadoran military clean up its human rights record. One of the three BIA judges asked whether Casanova was “too far up the chain [of command] to control those units?” The ICE attorney said “no” as Casanova himself testified at his own trial that he kept tight control of the unit. Once the BIA issues its decision, the losing party has the right to appeal to a federal court of appeals.

On February 26, 2014, an immigration judge ordered Garcia to be removed or deported from the U.S. after a trial had determined that he had helped conceal the involvement of soldiers who killed four American churchwomen in 1980 and that he “knew or should have known” that army troops had slaughtered the villagers, including women and children, in the hamlet of El Mozote in 1981. Garcia plans to appeal to the BIA.

In July 2010, ICE charged Guatemalan Pedro Pimentel Rios with being deportable for having assisted or otherwise participated in extrajudicial killings during the Dos Erres massacre in that country. In May 2011 an immigration judge, after trial, determined that he had in fact participated in extrajudicial killings in that massacre and ordered his removal to his home country. That removal occurred in July 2011.

After his return to Guatemala, he was tried by a three-judge court and found guilty of participation in the massacre and sentenced to imprisonment of 6,060 years (30 years for each of the 201 victims). This sentence was largely symbolic since Guatemalan law does not permit prison terms longer than 50 years.

U.S. Conviction and Imprisonment

Foreigners who had gained legal entry or presence in the U.S. can be criminally prosecuted for committing fraud in obtaining a U.S. visa or other immigration benefit (18 U.S.C. § 1546(a)) or committing perjury in statements to U.S. immigration officials (18 U.S.C. § 1621(2)) for failure to disclose their involvement in foreign human rights violations.

Responsibility for enforcing these provisions lies in the U.S. Department of Justice’s Human Rights and Special Prosecutions Section, which “primarily investigates and prosecutes cases against human rights violators and other international criminals . . . for genocide, torture, war crimes, and recruitment or use of child soldiers, and for immigration and naturalization fraud arising out of efforts to hide their involvement in such crimes.”

Examples of such cases are those involving former Salvadoran military officer, Innocente Orlando Montano, and two former Guatemalan military officers, Gilberto Jordan and Jorge Sosa Orantes.

Montano allegedly was involved in various human rights violations in his country, including the November 1989 murder of the six Jesuit priests and their housekeeper and her daughter.[5] Based on his guilty plea, on August 27, 2013, the federal court in Boston, Massachusetts sentenced Inocente Orlando Montano to 21 months in prison for violating U.S. immigration laws.

In 2010, Guatemalan Gilberto Jordan was arrested in Florida for allegedly lying on naturalization forms that allowed him to become a U.S. citizen. He pleaded guilty to failing to disclose on those forms that he had participated in the 1982 killings of at least 162 countrymen in the village of Dos Erres. In September 2010 a federal judge sentenced him to 10 years imprisonment

On October 1, 2013, Jorge Sosa Orantes, a Guatemalan military officer who lead a massacre of a village in his home country, was convicted by a federal jury for making false statements and unlawfully procuring U.S. citizenship when he applied for U.S. residency in 1997 and when he obtained citizenship a decade later. On February 10, 2014, the presiding judge sentenced Sosa with a revocation of his U.S. citizenship and imprisonment for 10 years.

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[1] Garcia and Casanova jointly had been held civilly liable for torture in their country by U.S. federal courts under the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA), but who jointly had escaped similar civil liability under the TVPA for the torture and murder of the four American churchwomen in El Salvador.

Progress on the Vatican’s Canonization of Archbishop Oscar Romero

This blog has made many posts about martyred Salvadoran Archbishop Oscar Romero. Therefore, this blogger is pleased with the news of progress on Romero’s canonization from Super Martyrio Blog that is devoted to obtaining that canonization. The following is a re-posting of the May 20, 2014, post by the Super Martyrio Blog. Thank you, Super Martyrio for this good news.

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The current Archbishop of San Salvador, Msg. José Luis Escobar Alas, confirmed this Sunday that in his May 9 audience with Pope Francis, he and three Salvadoran Bishops accompanying him discussed the canonization process of Archbishop Oscar A. Romero with the Pontiff. Archbishop Alas described Pope Francis as happy and enthusiastic about the cause and he confirmed the fact, first reported by Super Martyrio, that the Salvadorans are inviting the Holy Father to El Salvador for the canonization. “What we are thinking, what we are asking the Lord,” Msgr. Alas said, “is the prompt canonization of Monseñor Romero, and that Pope Francis come and that it will be here” [in El Salvador].

The Archbishop reported that, based on the Pope’s reaction, “I would say that he accepted with pleasure, but we did not talk about timing, because the cause is still in course.”

However, the statement fell short of the huge expectations created when Auxiliary Bishop Gregorio Rosa Chávez intimated last Sunday that there would be a big announcement, bearing exciting news from Alas, leading many to infer that the church was about to announce Romero’s imminent beatification. The latest excitement would not constitute the first false report about an impending beatification from those close to the process. In September 2005, the postulator of the cause, Msgr. Vincenzo Paglia suggested to Vatican reporter John Allen that he was “within a month” of securing Romero’s beatification. Paglia has remained comparatively more tight-lipped this time, not making any statements since reporting last year that Pope Francis had released a hold over the process.

Alas reported that the Pope “demonstrated his happiness, his approval,” of Romero’s beatification, “but he did not provide a date, we understand, out of respect for the very process,” Alas said.Additional details about the Salvadoran delegation’s activities in Rome were revealed last week in the Salvadoran Church’s weekly newspaper, Orientación. In a letter to the editor from Alas in Rome, the newspaper revealed that the four Salvadoran bishops who traveled to Italy for the recent canonizations of Popes John XXIII and John Paul II had met with Paglia ahead of meeting with Pope Francis. “The whole meeting was on the issue of the beatification of Archbishop Romero,” Alas said in his letter. “Archbishop Paglia spoke to us about his knowledge about Archbishop Romero, about the process, and about his activities as postulator. He was very happy with us.”The ecclesial weekly also disclosed the novelty of the Salvadoran bishops’ letter expressing unanimous support for Romero’s beatification. Super Martyrio had previously reported that such a letter had already been sent to the Vatican. However, the previous letter was sent to the Congregation for the Causes of Saints and, the diocesan newspaper reported, the bishops conference had recently concluded that the previous step had been legally insufficient as a matter of canon law, and that it was necessary to direct a letter to the Pope himself. To further bolster the gesture, the bishops decided to deliver it in person.

During his Sunday press conference on May 18, Archbishop Alas also disclosed that the Pope had told the Salvadoran bishops during their meeting that he had been similarly invited to visit El Salvador by President-Elect Salvador Sánchez Cerén when the two met in April, also regarding Archbishop Romero’s canonization cause.

U.S. Orders Deportation of Former Salvadoran General

As mentioned in a prior post, in October 2009, the Department of Homeland Security charged that General Jose Guillermo Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable (or deportable) from the U.S. under the Immigration and Nationality Act on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.

According to that post, on February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges.

On February 26, 2014, the judge issued his 66-page decision in the case.[1] The judge found that:

“As head of the armed forces and the most powerful person in El Salvador, [García] fostered, and allowed to thrive, an institutional atmosphere in which the Salvadoran Armed Forces preyed upon defenseless civilians under the guise of fighting a war against communist subversives. Instead of institutional changes that would decrease the incidents of killings and torture by the military, [García] failed to stamp out death squads within the security forces. Likewise, despite contemporaneous evidence that members of the military had been involved in the [1980] assassination of Archbishop Oscar Romero,[[2]] a man who could have been an ally in bringing about change and peace in El Salvador, [García] failed to adequately investigate.”

The judge also found that General García helped conceal the involvement of soldiers who killed four American churchwomen in 1980.[3] In addition, he “knew or should have known” that army troops had slaughtered the villagers, including women and children, in the hamlet of El Mozote in 1981.[4]

As a result, the judge ordered that Garcia should be removed (or deported) from the U.S. The lawyer for Mr. Garcia said there will be an appeal.

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[1] This summary of the decision is based upon a New York Times article and a more extensive analysis by the Center for Justice and Accountability. The actual decision is also available on the web.

[2] This blog has many posts about Archbishop Romero.

[3] This blog also has posts about the ministries and murders of the American churchwomen.

[4] The El Mozote massacre also has been a subject in this blog.

My Vocations

The words and music about vocation at the January 26^th and February 9^th worship services at Minneapolis’ Westminster Presbyterian Church have inspired my general thoughts about vocation set forth in a prior post. Now I reflect on my own vocations.

Until I was in my early 40’s, I had no religious beliefs after high school and no sense of vocation.

That started to change in 1981 when I joined Westminster and embraced what I now see as my first vocation: serving the church as a ruling elder (1985-1991) and over time as an active member of several of its committees (Spiritual Growth, Communications and Global Partnerships). More recently I joined its Global Choir. After all, a new member covenants to find “a definite place of usefulness” in the church.

For 10 years (2003-2013) I served as chair of Global Partnerships, which supervises the church’s partnerships with churches and other organizations in Cuba, Cameroon, Palestine and for a time in Brazil. This lead to my going on three mission trips to Cuba, one to Cameroon and another to Brazil. As a result, I established personal friendships with people in those countries as part of our collective, and my personal, vocation of being present with our brothers and sisters in other parts of the world and standing in solidarity with them. I also learned about the history, culture and current issues of those countries. This in turn lead to a strong interest in promoting reconciliation between the U.S. and Cuba and Cuban religious freedom, and as a U.S. citizen I have endeavored to do just that.

This sense of religious institutional vocation also encompassed my serving on the Board of Trustees of United Theological Seminary of the Twin Cities for another 10-year period (1988-1998). In my small way, I helped nurture future ministers of the church. In the process I got to know interesting members of the faculty, administration and board and about the life of U.S. seminaries.

I, however, initially struggled with how to integrate my newly reclaimed religious beliefs and my life as a practicing lawyer, and over the years found ways to share this struggle with others, especially with my fellow lawyers.

One way I discovered a vocation in the practice of law resulted from experiencing the bitterness and lack of reconciliation between opposing parties in litigation and, too often, as well between their lawyers, including myself. This experience lead in the late 1980’s through the 1990’s to a personal interest in, and writing and speaking about, alternative dispute resolution (ADR), one of whose objectives is resolution of such disputes more amicably, and to my active participation in the ADR Section of the Minnesota State Bar Association.

Another and more powerful vocation involving my professional life emerged when a senior partner of my law firm in the mid-1980’s asked me to provide legal counsel to the firm’s client, the American Lutheran Church (“ALC” and now the Evangelical Lutheran Church in America). The problem: how should the ALC respond to information that the U.S. immigration agency (INS) had sent undercover agents into worship services and Bible-study meetings at ALC and Presbyterian churches in Arizona that provided sanctuary or safe places to Salvadorans and Guatemalans fleeing their civil wars.

The conclusion of this engagement was the ALC and the Presbyterian Church (USA)—my own denomination—jointly suing the U.S. government to challenge the constitutionality of such spying. Eventually the U.S. district court in Arizona held that the U.S. Constitution’s First Amendment “free exercise” of religion clause protected churches from unreasonable government investigations.

U.S. immigration law was in the background of this case, but I did not know anything about that law. I, therefore, sought to remedy that deficiency by taking a training course in asylum law from the Minnesota-based Advocates for Human Rights.

I then volunteered to be a pro bono lawyer for a Salvadoran seeking asylum in the U.S. because of his claim to a well-founded fear of persecution in his home country because of his political opinions and actions opposing its government. Again, my initial motivation for this action was to be a better lawyer for the ALC.

I discovered, however, that being a pro bono asylum lawyer was my passionate vocation while I was still practicing law and continued doing so until I retired from the practice in the summer of 2001. In addition to El Salvador, my other clients came from Somalia, Afghanistan, Burma and Colombia. I was able to assist them in obtaining asylum and thereby escape persecution. In the process, I learned more about asylum law and other aspects of immigration law as well as the horrible things that were happening in many parts of the world. I was able to use my experience and gifts in investigating and presenting facts and legal arguments to courts and officials and came to see this as one of the most important and rewarding vocations I have ever had.

In the process of this asylum work, I also learned for the first time about the humbling and courageous ministry and vocation of Salvadoran Archbishop Oscar Romero, who was assassinated in March 1980 because he repeatedly spoke out against human rights violations in his country. He now is my personal saint. I also learned about the important and courageous work in that country by the Jesuit priests and professors at the University of Central America, six of whom were murdered in November 1989 for the same reason, and they too have become heroes for me.

Another Salvadoran I met on my first trip to that country enriched my sense of the potential for vocation in practicing law. He was Salvador Ibarra, a lawyer for the Lutheran Church’s human rights office, who spoke about the joy he experienced in his work.

After retiring from the full-time practice of law in 2001, I served as an Adjunct Professor at the University of Minnesota Law School (2002 through 2010) to co-teach international human rights law. I thereby hoped to encourage law students to become interested in the field and to include such work in their future professional lives. Thus, this became another vocation with the side benefit of enabling me to learn more about the broader field of international human rights.

I chose another retirement in 2011, this time from part-time teaching, in order to start this blog about law, politics, history and religion. I came to see it as yet another vocation. I think it important to share my religious experiences and beliefs in the midst of active consideration of legal and political issues and demonstrate that it is possible for an educated, intelligent individual to have such beliefs.

In 2011 as a member of the planning committee for my Grinnell College class’ 50^th reunion. I thought we should do more to remember our deceased classmates than merely list their names in our reunion booklet. I, therefore, suggested that if each committee member wrote five or six obituaries, we would have written memorials for all of our departed classmates. However, no one else volunteered to participate in this project so I did it all myself except for a few written by spouses. After the reunion, I continued to do this when the need arises.

Although this project required a lot of work, I came to see it as pastoral work and rewarding as I learned about the lives of people, many of whom I had not really known when we were together as students. I drew special satisfaction when I learned that a classmate who had died in his 30’s had two sons who had never seen the College annuals that had a lot of photographs of their father as a physics student and co-captain of the football team, and I managed to find a set of those annuals which were sent to the sons. I thus came to see this as a vocation.

Many of these vocations resulted from invitations from others to do something, which I accepted. Initially the invitations did not seem to be calls for a vocation, and it was only after doing these things and reflecting upon them that I saw them as such.

The concept of vocation often seems like doing something for others without any personal rewards other than feeling good about helping others. I, therefore, am amazed by the many ways I have been enriched by these endeavors. I have learned about different areas of the law, different countries and the lives of interesting people, living and dead.

I feel blessed that I have discovered at least some of the work that God has called me to do, in Frederick Buechner’s words, “the work that I need most to do and that the world most needs to have done.”

Or as Rev. Hart-Andersen said on February 9^th, “When Jesus calls we get up and go, stepping forward in the direction of the one calling us. Being a follower of Jesus is not a destination . . . . Being called to follow Jesus is a way of life, a pilgrimage on which we embark together.”

What’s next?

Amending Spain’s Universal Jurisdiction Statute

Spain currently is in the process of adopting an amendment to its statute regarding universal jurisdiction for one of its courts. This post will examine that forthcoming amendment after looking at the background of that amendment.

Background

Under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture. (This was discussed in a prior post.)

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court (La Audiencia Nacional) for the following crimes: (a) genocide; (b) terrorism; (c) piracy and hijacking of aircraft; (d) falsification of foreign currency; (e) prostitution and corruption of minors or incompetents; (f) trafficking in illegal, psychotropic, toxic and narcotic drugs; and (g) any other crimes under international treaties or conventions that should be prosecuted in Spain.

In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.

Finally the 2009 amendment specified that for such Spanish jurisdiction to exist, another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there were such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.

The New Amendment

On February 11, 2014, Spain’s Congress of Deputies (Congreso de los Diputados), the lower house of the country’s bicameral legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Since the same political party (Party Popular) also controls Spain’s Senate, it is anticipated that the Senate will pass the bill as well. Here are the principal provisions of the amendment:

The following specific crimes were added for universal jurisdiction: (i) war crimes (crimes against persons or goods in armed conflict); (ii) torture and crimes against moral integrity; (iii) crimes under the Convention on the Physical Protection of Nuclear Material; (iv) crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence; (v) offenses of corruption between private or international economic transactions; and (vi) crimes of enforced disappearances under the International Convention for Protection of All Persons from Enforced Disappearances.
Greater specificity was provided for offenses other than piracy covered by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol; offenses other than hijacking of aircraft under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and its Supplemental Protocol; crimes against sexual freedom committed on children; and trafficking in human beings.
For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.
For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
Only public prosecutors and victims may initiate criminal proceedings under universal jurisdiction; other private individuals or groups (acusaciones populares) may not do so.
Pending cases under the universal jurisdiction provision would be stayed and thereafter dismissed if they could not satisfy these new conditions.

There currently are 12 cases under this jurisdictional provision pending in Spanish courts, and presumably they all will be dismissed under this new amendment. They are the following:

Genocide in Tibet. In 2006 the court commenced an investigation against five former Chinese Communist leaders, including former President Jiang Zemin, for alleged genocide in Tibet. In November 2013, the court issued arrest warrants for these individuals, and in early February 2014, the court rejected the prosecutor’s motion to quash the warrants. As a result, the court on February 10^th asked INTERPOL to issue international arrest warrants for the Chinese individuals.
Genocide in Guatemala. In 2003 the court commenced an investigation of eight former senior Guatemalan officials for alleged genocide, terrorism and torture.
Genocide in Sahara. In 2006 a NGO commenced a case against 31 Moroccan military officers for alleged genocide in the Sahara Desert.
Genocide in Rwanda. In 2005 an investigation was commenced against 69 senior Rwandan officials for alleged genocide and murder, and in 2008 arrest warrants were issued for 40 Rwandan soldiers.
Holocaust. In 2008 a case was commenced by Spanish survivors of the Holocaust against four SS guards, and in 2009 international arrest warrants were issued for three of these guards.
Murder of Spanish Diplomat. In 2012 the court commenced an investigation against seven Chilean officials for alleged participation in the 1976 kidnapping and assassination of a Spanish diplomat, Carmelo Soria. Last year a Chilean court rejected Spain’s request for the arrest of the officials.
Persecution of Falun Gong. In 2006 the court started an investigation of alleged persecution of Falun Gong practitioners by the Chinese government between 1999 and 2002.
Israeli Attack on “Freedom Flotilla” to Gaza. In 2010 the court started an investigation of Israeli officials for alleged war crimes and crimes against humanity for an armed assault on ships with materials for Palestinians in Gaza.
Murder of Spanish Journalist. In 2003 the court started an investigation of alleged U.S. military personnel in the 2003 death of a Spanish journalist, Jose Couso, in Iraq.
Torture of Detainees on CIA Flights. In 2006 the court started an investigation of possible violations by CIA or other U.S. personnel with respect to detainees on CIA flights stopping at an airport in Spanish territory.
Iraqi attack on Iranian refugee camp. In 2009 the court started to investigate an alleged Iraqi military attack on an Iranian refugee camp in 2008.
Murder of the Jesuit priests. In 1999 the court commenced to investigate the 1989 murders of six Jesuit priests in El Salvador, and in 2011 the court ordered the arrest of 20 former Salvadoran military officials.

The immediate precipitating causes for the Spanish government’s seeking and obtaining approval of this amendment at this time are widely seen as the Spanish court’s issuance of arrest warrants, and seeking INTERPOL arrest warrants, for high officials of the Chinese Communist Party, including a former president of the country, for alleged genocide in Tibet; China’s vehement protests of these developments; and the Spanish government’s desire for a friendly economic relationship with China.

Indeed, on February 11^th, China’s Foreign Ministry said, “China is extremely dissatisfied with and resolutely opposed to the wrong actions of the relevant Spanish [court] taken while ignoring China’s solemn position. Whether or not this issue can be appropriately dealt with is related to the healthy development of ties. We hope that the Spanish government can distinguish right from wrong.”

Human rights groups opposed the current proposed amendment. Amnesty International, Human Rights Watch, the Center for Justice and Accountability and 14 others argue that under multilateral treaties ratified by Spain it has a legal obligation to prosecute any suspected offender of those treaties—regardless of where the crime was committed,[2] who is found in Spain. Moreover, these groups say, the International Court of Justice explained in the case Belgium v. Senegal, this duty to prosecute arises “irrespective of the existence of a prior request for the extradition of the suspect” and requires States to adopt legislation giving its courts the necessary jurisdiction.

Conclusion

Although I regard myself as an human rights advocate and have great respect for Amnesty International and the other NGOs that have opposed the amendment, I dissent from their objections.

In my opinion, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction. Indeed, as noted above, but not acknowledged in the NGOs’ objections, the amendment expands the crimes that are subject to universal jurisdiction and provides greater specificity for some of the crimes previously covered by the statute. This is important for future use of the statute and for due process notice to individuals who may be charged with such crimes in the future.

The main objection appears to be the amendment’s requirement for universal jurisdiction in some instances for an accused foreigner to be present (habitually resident or found) in Spain. This is akin to the U.S. constitutional due process requirement for a defendant to be present in the jurisdiction in order for personal jurisdiction in civil cases to exist, and I believe it is a reasonable requirement for criminal cases in Spain under its universal jurisdiction provisions.

Moreover, in many, if not all, of the previously mentioned 12 pending cases in Spain, the defendants have never been in Spain, and this has lead to the Spanish court’s unsuccessful efforts to enforce its own arrest warrants or the INTERPOL international arrest warrants. As a result, actual criminal prosecutions in these 12 cases have not even been commenced.

I know this is true in the case against 20 former Salvadoran military officers for their alleged involvement in the horrendous murders of the six Jesuit priests and their housekeeper and her daughter in El Salvador in November 1989. I think it is outrageous that these 20 individuals so far have not faced any criminal accountability or punishment for their alleged complicity in this awful crime and thus have de facto immunity or impunity for their actions, and I had hoped that the criminal case in Spain under its universal jurisdiction statute would bring them to justice. But unfortunately that has not happened. (Other posts on Spain’s case regarding the Jesuits’ murders, 6/15/11 and 8/26/11.)

Objection also has been made to the amendment’s imposing a requirement for universal jurisdiction in some instances for Spain to have denied a request for extradition. But at least as I read the English translation of the amendment, this requirement exists only for those foreigners who are temporarily in Spain and does not apply to foreigners who habitually reside in the country. For the passers-by this seems like a due process concern. How would you like while on holiday for one week on the Costa Brava to be charged with a serious crime by a Spanish court for something you allegedly did in the U.S. 10 years ago?

Furthermore, the amendment’s limitations also appear to be reasonable to make efficient use of Spanish judicial resources.

Finally, the Spanish government, in my opinion, has a legitimate interest in its efforts to have friendly economic relations with China as Spain continues to struggle to emerge from its economic difficulties, including high unemployment. Pursing justice for horrible crimes committed elsewhere is a laudable purpose and goal, but it is not the only purpose and goal of the Spanish government or any country’s government.

As an U.S. scholar stated, “With unemployment at 25 percent, Spaniards would be right to wonder why their officials were using taxpayer resources for other peoples’ problems and simultaneously risking even more Iberian jobs.”

[1] This summary of Spain’s new amendment by a retired U.S. lawyer who is not an expert on Spanish law is based upon the English translation of the new law (Proposed Law on Universal Justice to amend the Organic Law 6/1985 of 1 July on the Judiciary on universal justice, No. 122/000136) and of Spain’s Congress’ press release about the bill and the following English-language sources and translations (from Spanish): Perez, High court to follow through on arrest warrants against top Chinese officials, El Pais in English (Feb. 7, 2014); Amnesty Int’l and 15 other Human Rights Organizations, Spanish Lawmakers Should Reject Proposal Aimed at Closing the Door on Justice for the Most Serious Crimes (Feb. 10, 2014); Yardley, Spain Seeks to Curb Law Allowing Judges to Pursue Cases Globally, N.Y. Times (Feb. 10, 2014); Moffett, Spain’s Lower House Approves Law to Limit Judges’ Reach, W.S.J. (Feb. 11, 2014); The twelve causes of ‘universal justice,’ El Mundo (Feb. 11, 2014); Molto, Tibet to universal justice: Chronicle of an announced impunity, El Pais (Feb.11, 2014); Kassam, Spain moves to curb legal convention allowing trials of foreign rights abuses, Guardian (Feb. 11, 2014).

[2] These treaties include the Geneva Conventions; the U.N. Convention against Torture; the International Convention for the Protection of All Persons from Enforced Disappearances; the Hague Convention for the Suppression of Unlawful Seizure of Aircraft; and the Convention on the Physical Protection of Nuclear Material.

Former Salvadoran Colonel Inocente Orlando Montano To Serve 21 Months in U.S. Prison

On August 27, 2013, the federal court in Boston, Massachusetts sentenced Inocente Orlando Montano to 21 months in prison for violating U.S. immigration laws.

To obtain certain relief under those laws, Montano had stated to U.S. immigration officials that he had never served in any foreign military service, had never received military weapons training and had never been involved in persecuting others. A year ago he pleaded guilty to three counts of a federal indictment for those statements.[1]

In fact, Montano had served in the Salvadoran military, had received such training and had been involved in persecuting others. The record in the U.S. criminal case established the following:

During the Salvadoran Civil War, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.” [2]
Before the November 1989 murder of the Jesuit priests in El Salvador, Montano was an active participant in trying to publicly discredit the priests, including publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA) who was one of those murdered, as one “fully identified with subversive movements.”
In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)[3]
After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in charge of investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”[4]

Moreover, in May 2011, Montano was one of 20 former Salvadoran military officials who were subjects of arrest warrants by a Spanish court investigating the murder of the Jesuit priests, and in December 2011 the Spanish court issued a request to the U.S. for Montano’s extradition to Spain to face trial on those charges.[5]

The 21-month prison sentence was imposed by U.S. District Judge Douglas P. Woodlock.

The Judge noted that the site of the sentencing hearing–the Boston federal courthouse–was named after former U.S. Congressman John Joseph (“Joe”) Moakley, who had lead a congressional investigation of the murders of the Jesuits and whose words from a speech he had given at the site of the Jesuits murders had been engraved on the front of the courthouse: “There is no such thing as half justice. You either have justice or you don’t. You either have a democracy in which everyone–including the powerful–is subject to the rule of law or you don’t.”

Judge Woodlock closed the sentencing hearing by quoting the final summation of Justice Robert Jackson in the 1946 Nuremberg trials of Nazi perpetrators:

“These defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: ‘Say I slew them not.’ And the Queen replied, ‘Then say they were not slain. But dead they are…’ If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no victims, there has been no crime.”

Judge Woodlock then added, “In El Salvador, “there was a war, there are victims, and there has been a crime.”

[1] A prior post reported on early developments in the U.S. criminal case against Montano.

[2] Dr. Karl’s expert report is available online.

[3] A prior post discussed the actual murders of the Jesuits along with their housekeeper and her daughter while another post reviewed the Truth Commission’s report regarding same.

[4] The attempted cover up of the Salvadoran military’s planning and commission of the murders was discussed in a prior post while another post reviewed the Salvadoran criminal case about the murders.

[5] A prior post covered the Spanish court’s arrest warrants; another, developments in that case; and another, the requests for extradition. After Montano’s sentencing, the Center for Justice and Accountability, which backed the case against Montano, said that the U.S. has indicted that it would be amenable to his extradition to Spain after he had served his U.S. sentence.

CJA re Jesuits–http://cja.org/article.php?list=type&type=84

Enforcement– http://dwkcommentaries.com/2013/04/14/enforcement-of-international-human-rights-norms-with-u-s-immigration-laws/

The Witness of a Lawyer for Salvadoran Soldier Accused of 1980 Murder of American Churchwomen

In a prior post I described my April 1989 meeting in El Salvador with Salvador Ibarra. He told me and others that a Salvadoran judge had appointed him to represent one of the Salvadoran national guardsmen accused of raping and murdering the four American church women in December 1980.[1]

Someone from the U.S. Embassy, he told us, had asked Ibarra to call a press conference and announce that he had investigated and had found no involvement of higher officials in this horrible crime. This, however, was not true, and he refused to hold a press conference. In response he received death threats that prompted him and his family to flee the country.

I recently came across a May 1985 article that has additional information about his involvement in this notorious case.

The article confirms that Ibarra was appointed by a Salvadoran court to represent one of the national guardsmen accused of this crime, that Ibarra was pressured to not contradict a false statement that the possibility of a cover-up by higher officials had been investigated and found to be baseless and that he received death threats if he did not go along with this strategy.

This pressure, the article reports Ibarra having said, came from other defense lawyers. One was the half-brother of the director of the Salvadoran National Guard while another was a childhood friend of the Salvadoran Minister of Defense at the time, Jose Guillermo Garcia.[2]

When Ibarra told the other lawyers he would not cooperate in this plan, the article states Ibarra said he “was abducted by Salvadoran security forces, held prisoner at national guard headquarters and tortured.” The purpose of his detention and torture, Ibarra said in the article, “was to get him off the case, either by killing him or forcing him to flee the country.”

Sadly Ibarra is deceased, and I cannot ask him questions about this article. But neither account of his involvement in the case directly contradicts the other. Perhaps both are true. There undoubtedly are additional details about this case that probably would emerge in an extended conversation that unfortunately will never happen.

In any event, Ibarra is still a witness and inspiration to me of a courageous lawyer who risked his life to stand up for the truth and zealously to represent his client in a very important case. Moreover, as discussed in the prior post, after having fled to the U.S. because of these pressures, he later returned to his country to be a lawyer for the Lutheran Church’s human rights office, an occupation that again put his life on the line during the Salvadoran Civil War.

Muchas gracias, Salvador Ibarra!

[1] Many prior posts have discussed this horrible crime, its various judicial and non-judicial investigations and my visits to the site of the crime and of the women’s graves in El Salvador.

[2] Other posts have discussed Garcia’s involvement in legal proceedings about this and other crimes in that country.

Beatification of Salvadoran Archbishop Oscar Romero?

Today at a private audience in the Vatican Pope Francis heard a plea for the Roman Catholic Church’s beatification[1] of Salvadoran Archbishop Oscar Romero. The petitioner was Mauricio Funes, the President of El Salvador.[2]

Funes gave the Pope a reliquary containing a piece of the bloodstained garment Msgr. Romero was wearing when he was assassinated on March 24, 1980. Created by the Sisters of the Hospital of Devine Providence, whose adjacent chapel was the site of the assassination, the reliquary monstrance (vessel for display of a relic) is in the shape of a cross with the arms depicting stylized human figures representing the participation of the people of God in the death of the Archbishop. (It is shown in the above photo.)

President Funes also told the Pope that Funes had been a pupil of Father RutilioGrande, whose assassination in 1977 had inspired Romero. The Pope apparently responded that Grande should also be beatified because of his love for the poor and for his persecution.

Afterwards President Funes met with the Holy See’s Secretary of State, Cardinal Tarcisio Bertone, S.D.B., accompanied by Archbishop Dominique Mamberti, secretary for Relations with States.

The Vatican’s subsequent press release said that the Pope had expressed “satisfaction . . . for the good relations between the Holy See and the nation of El Salvador. In particular, Servant of God Archbishop Oscar Amulfo Romero y Galdamez of San Salvador was spoken of and the importance of his witness for the entire nation.”

As a Christian of the Protestant and Presbyterian persuasion, my church does not have official saints. However, I regard Romero as my saint as he already is the saint of the Salvadoran people. My many posts about Romero discuss my belated discovery of him on my first trip to El Salvador in 1989, his powerful, courageous resistance to the many human rights abuses of the Salvadoran government and military, his assassination and funeral, the cases about his assassination in the Inter-American Commission on Human Rights and U.S. federal court and remembering him in music, film, art and books and at Westminster Abbey in London.

I also have developed a great respect for Father Rutilio Grande. I attended his memorial mass in 2003 not far from where he was assassinated on a country road and reviewed that memorable occasion in a post.

[1] As I understand, beatification is a recognition accorded by the Roman Catholic Church of a dead person’s entrance into Heaven and capacity to intercede on behalf of individuals who pray in his or her name. Beatification is the third of the four steps in the canonization process of becoming a saint. A person who is beatifiedis given the title “Blessed” in English.

[2] This post is based upon articles in the Washington Post, Diario Latino, LaPagina and SuperMartyrio, the last of which is a blog devoted to following the process of Romero’s becoming a saint in the Roman Catholic Church.

Enforcement of International Human Rights Norms with U.S. Immigration Laws

Three methods of enforcing international human rights norms are found in U.S. laws relating to immigration.[1]

Introduction

First, certain foreign human rights violators can be deported or removed from the U.S. As section 237(a)(4)(D) of the Immigration and Nationality Act (INA) states: “Any alien . . . in and admitted to the [U.S.] . . . shall . . . be removed if the alien . . . (ii) ordered, incited, assisted, or otherwise participated in genocide, as defined in section 1091(a) of title 18, United States Code . . . ; (iii) outside the [U.S.] . . . committed, ordered, incited, assisted, or otherwise participated in . . . (I)any act of torture, as defined in section 2340 of title 18, United States Code; or (II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).” [2]

Generals Casanova (left) and Garcia (right)

This provision of U.S. immigration law currently is being used with respect to former Salvadoran military officers Carlos Eugenio Vides Casanova and Jose Guillermo Garcia, who jointly had been held civilly liable for torture in their country by U.S. federal courts under the Alien Tort Statute(ATS)[3] and the Torture Victims Protection Act (TVPA),[4] but who jointly had escaped similar civil liability under the TVPA for the torture and murder of the four American churchwomen in El Salvador.

These two immigration cases were brought by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency (ICE) of the Department of Homeland Security (DHS), whose mission is to “prevent the admission of foreign war crimes suspects, persecutors and human rights abusers into the [U.S.],” to “identify and prosecute individuals who have been involved and/or responsible for the commission of human rights abuses across the globe” and to “remove, whenever possible, those offenders who are located in the [U.S.].”

Second, certain foreign human rights violators who had gained legal entry or presence in the U.S. can be criminally prosecuted for committing fraud in obtaining a U.S. visa or other immigration benefit (18 U.S.C. § 1546(a)) or committing perjury in statements to U.S. immigration officials (18 U.S.C. § 1621(2)).

This set of provisions currently is being used with respect to another former Salvadoran military officer, Innocente Orlando Montano, who allegedly was involved in various human rights violations in his country, including the November 1989 murder of the six Jesuit priests and their housekeeper and her daughter.[5]

Third, last year the U.S. adopted the so-called Magnitsky Act which bans the issuance of U.S. visas to Russian individuals involved in certain human rights violations, including the detention, abuse or death of Sergei Magnitsky, a Russian lawyer and auditor who died in a Moscow prison in 2009 after investigating fraud involving Russian tax officials.[6]

Discussion

Vides Casanova

After an eight-day trial, a U.S. immigration judge on February 22, 2012, issued his 151-page decision on charges by DHS that Casanova, who had been residing in the U.S. since his retirement from the Salvadoran military in 1989, was removable from the U.S. on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador under the previously cited INA provisions. [7]

The immigration judge found that Casanova had ” assisted or otherwise participated in (a) “the extrajudicial killings of the four American churchwomen, five other named individuals, 29 unnamed others plus “countless civilians committed by the Salvadoran Armed Forces and Salvadoran National Guard while under [his] . . . command” and (b) “the torture of [Arce]” and “countless unnamed individuals [who had been] tortured by the Salvadoran [security forces] while under [his] . . . command.” Therefore, the immigration judge concluded that Casanova was removable from the U.S. under the previously cited statutory provision.

On August 16, 2012, the Immigration Judge denied Casanova’s application for cancellation of the removal order. The Judge held that the INA barred Casanova from seeking cancellation of removal, that under Board of Immigration (BIA) precedent immigration judges could not apply the doctrine of equitable estoppel against the U.S. Government and that the statutory provision authorizing his removal that was added in 2004 was explicitly made retroactive, thus rendering any contrary international law irrelevant.

On September 17, 2012, Vides Casanova appealed the latter decision to the Board of Immigration Appeals, where it is now pending.

Jose Guillermo Garcia

In October 2009, DHS charged that Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable from the U.S. under the previously cited INA provisions on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.[8]

On February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges. Closing briefs are due on June 3 and reply briefs by July 5. Thereafter the judge will issue a “timely written decision.”

The trial record consists of nine volumes of documents and the testimony of former U.S. Ambassador to El Salvador, Robert E. White; Dr. Juan Romagoza Arce (a plaintiff in the successful ATS and TVPA case against Garcia and Casanova); Dr. Terry Karl (expert witness); Garcia; and Ana Carolina Montoya (Garcia’s daughter).

Ambassador White testified to his frequent conversations with Garcia from March 1980 to early 1981, when the Ambassador urged Garcia to clean up human rights abuses and hold the perpetrators responsible. Garcia, however, failed and refused to do so even though he had admitted to White that 1% of the military were in the death squads. Garcia had expressed approval of the November 1980 assassination of the leadership of an opposition political party and of the strategy of assassinations as a means of dealing with dissidents.
Arce testified to his abduction in December 1980 and his horrendous torture over 22 days at a military barracks and the National Guard headquarters.
Dr. Karl, a Stanford University political science professor who has studied El Salvador for many years, testified that during the period Garcia was Minister of Defense (October 1979-April 1983) (1) he was the most powerful person, de facto and de jure, in the country; (2) the Salvadoran military engaged in widespread and systematic attacks on civilians; (3) Garcia was in control of the military; (4) Garcia presided over instituting measures of state terror; (5) Garcia’s actions gave a “green light” for human rights abuses; (6) Garcia promoted and protected known human rights abusers and fostered impunity of his fellow officers; and (7) Garcia repeatedly denied human rights abuses were occurring. She also described the widespread and systematic use of torture by the various units of the Salvadoran security forces.
Garcia testified that he did not commit or order any acts of torture or extrajudicial killings. He admitted that he knew there were widespread human rights abuses in the military while he was Minister of Defense; that “was public knowledge” and “can’t be denied.” He, however, had tried to identify and hold the perpetrators accountable, but the available evidence was insufficient to have successful prosecutions.
During questioning by the immigration judge, Garcia repeatedly admitted that he know of torture and other abuses by the military, but that he lacked control. Yes, he said, he did bear responsibility for those abuses, but not culpability.

Innocente Orlando Montano

In February 2012 the federal court in Massachusetts indicted Montano for perjury and lying to U.S. immigration officials in connection with his applications for Temporary Protected Status (TPS) in the U.S. under the previously cited criminal code provisions.

On September 13th he pleaded guilty to three counts of immigration fraud and three counts of perjury as a result of (a) his stating a false date of entry to the U.S. that qualified for TPS instead of his actual date of entry which did not so qualify and (b) his false statements to immigration officials that he had never served in a military unit, had never received military weapons training and had never been involved in persecution of others.

Since then the parties have been exchanging briefs on the appropriate sentence. The Government is recommending one of 51 months while Montano argues that is too long.

The Government’s Sentencing Memorandum of January 8, 2013, makes an interesting and, in my opinion, compelling argument for its recommendation. Here are its main points:

During the Salvadoran civil war, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.”
Before the November 1989 murder of the Jesuit priests, Montano was an active participant in trying to publicly discredit the priests, including his publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA), as one “fully identified with subversive movements.”
In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)
After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in subsequent charge of investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”
When Montano left El Salvador for the U.S. in 2001, there was “a great likelihood [he] . . . was motivated, at least in part, . . . [by] fear that he was vulnerable to prosecution for his role in the Jesuit murders.”
A fear of such vulnerability grew out of the arrest in 1998 of Chilean General Pinochet and of his being stripped of his immunity and ordered in 2001 to stand trial in Chile; the 1999 case against an Argentine military officer; a case against a Honduran general; and the June 2001 conviction of a Guatemalan military officer for the extrajudicial execution of a Roman Catholic bishop.
Also supporting such a likely fear was the Salvadoran election of March 2000 which gave the FMLN (the former guerrilla organization) a legislative majority and which immediately thereafter precipitated calls for reopening the Jesuit case from the Rector of UCA and the Archbishop of San Salvador. To the same effect were decisions in 2000 by the country’s courts that its General Amnesty Law could not be applied to human rights violations by public officials while in office and that even though the statute of limitations had run out in the Jesuits case, the writ of amparo could still be used for that crime.

Given the strength of the Government’s justification for the recommended sentence, the lack of any real response from Montano and the skeptical questioning of Montano by the judge, I have little doubt that the judge will find the grounds for removal substantiated by the evidence and order him removed or deported from the U.S.

Magnitsky Act Developments

On April 12, 2013, the Obama Administration issued a list of 18 Russians who were barred from entering the U.S. and whose assets, if any, in the U.S. were frozen, pursuant to this statute. Most were individuals tied to the death of Mr. Magnitsky, but two had been implicated in notorious murders of a Chechen dissident and an American journalist. There were other more highly placed Russian officials on a nonpublic list.

The reaction to the release of this list was mixed. Russian officials, or course, were critical although a Russian legislator said the Obama Administration was taking a “minimalist path” to avoid a deeper crisis before the visit this week to Russia by the Administration’s National Security Advisor, Tom Donilon. Mr. Megnitsky’s U.S. client and major advocate for the Act when it was in Congress, William F. Browder, said, “We’ve just crossed the threshold. This is the end of impunity.” U.S. Senator John McCain, however, said the list was “so damaging” because it was not robust enough and promised new legislation to go after Russian abusers.

The next day (April 13th) Russia retaliated by issuing a list of 18 U.S. citizens who were barred from entering Russia because of their alleged human rights violations. It included two people involved in preparing the so-called “torture memos” –David Addington, Chief of Staff to Vice President Dick Cheney, 2005-2009; and John Yoo, Assistant U.S. Attorney General, 2001-2003–and two who had responsibilities for the operations of the Guantanamo Bay detention facilities– Geoffrey D. Miller, retired U.S.Army Major General, Commandant of Joint Task Force Guantanamo, 2002-2003; and Jeffrey Harbeson, U.S. Navy officer, Commandant of Joint Task Force Guantanamo, 2010-2012. The others on the list were U.S. officials involved in the prosecution and trial of a Russian arms dealer and a Russian pilot allegedly involved in drug trafficking.

Russian officials said the U.S. must realize it cannot conduct its relationship with Russia “in the spirit of mentoring and undisguised diktat.” The statement continued, “Our principled opinion on this unfriendly step is well known: under the pressure of Russophobically inclined U.S. congressmen, a severe blow has been dealt to bilateral relations and mutual confidence. The war of lists is not our choice, but we had no right to leave this open blackmail unanswered.”

Conclusion

These three immigration cases show the interactive nature of the enforcement of international human rights norms. Casanova and Garcia were named as involved in some of the worst human rights abuses in El Salvador by the Truth Commission for El Salvador, and its conclusions were then used by the Inter-American Commission on Human Rights in cases against the State of El Salvador and by U.S. courts in civil lawsuits under the ATS and the TVPA. All of the results of these proceedings were then used in these three U.S. immigration cases.

Another interactive element in these cases is the competent, sustained efforts of the Center for Justice and Accountability in supporting the successful civil lawsuit against Casanova and Garcia under the ATS and TVPA and pressing ICE’s Human Rights Violators and War Crimes Center to bring these immigration cases. The Center is a California-based human rights organization “dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress.” It “uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law, and advance the rule of law in countries transitioning from periods of abuse.”

The Magnitsky Act, in my opinion, is a different matter. I think it was unnecessary because the previously mentioned INA provisions now being used in the Casanova and Garcia immigration cases could be used to deny U.S. visas to the named Russians. I also think it was and is imprudent because it interferes with U.S. relations with Russia and our national interest in trying to obtain Russian assistance on problems with Syria and North Korea, for example. Professor of Russian Studies at NYU, Stephen Cohen, shares the latter view.

Yes, it is true that some of these means of enforcement are weaker than criminal conviction and imprisonment of the violators. Some only involve recommendations to the state (here, El Salvador) by such organizations as the Inter-American Commission on Human Rights. In this post we are concerned, in part, with orders by a country (here, the U.S.) for a violator to leave the country. But such “weakness” is a necessary consequence of a world essentially structured on the basis of an individual state’s sovereignty. Over time these various mechanisms hopefully will be improved and strengthened.

[1] Asylum, of course, is another part of immigration law that enforces human rights as covered in other posts. Additional ways of enforcement are discussed in another post.

[2] This provision about removal of foreign human rights violators was added by section 5501 of the Intelligence Reform and Terrorism Prevention Act of 2004, 118 Stat. 3638, 3740 (2004). The same language bars such a person from obtaining a visa for legal entry into the U.S. (Id. § 212(a)(3)(E)(ii), (III).)

[3] The ATS (28 U.S.C.§1350) provides that U.S.”district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].” Many prior posts have discussed this statute and cases thereunder.

[4] The TVPA (28 U.S.C.§1350 note) provides, “An individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture [or extrajudicial killing] shall, in a civil action, be liable for damages . . . .” Many prior posts have discussed this statute and cases thereunder.

[5] A Spanish court under the principle of universal jurisdiction has charged Montano and other Salvadoran military officers with complicity in the murders of the Jesuit priests and their housekeeper and daughter. The Spanish government has asked the U.S. to extradite Montano and another former officer now living in the U.S. to Spain to stand trial on such charges, but the U.S. apparently has not yet acted upon the request. A similar request to El Salvador for extradition of other former officers has been rejected. A summary of these and other developments in the Jesuits case is available on this blog.

[6] The complete title of the statute is the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012. Sections 404 (a) and 405(a) of the Act make ineligible for U.S. visas individuals identified on a subsequent U.S. presidential list of those “responsible for the detention, abuse, or death of . . . Magnitsky, participated in efforts to conceal the legal liability for the detention, abuse, or death of . . . Magnitsky, financially benefitted from the detention, abuse, or death of . . . Magnitsky, or was involved in the criminal conspiracy uncovered by . . . Magnitsky.” That presidential list is also to include a list of individuals “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking–(A) to expose illegal activity carried out by officials of the Government of the Russian Federation; or(B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia.”

[7] A previous post discussed this February 2012 decision. The complete (but redacted) text of the February and August 2012 decisions was only made publicly available in April 2013. A summary of this immigration case is available on the web.

[8] A summary of this immigration case is available on the web. Previously (January 2009), Garcia had been indicted for visa fraud and making false statements to U.S. immigration officials, but in September 2009 the indictment was dismissed when a government witness recanted her testimony.