El Salvador Perspectives: A strong rebuke for El Salvador on human rights*   

The United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein,  had tough words for El Salvador in his concluding statement this week, highlighting many areas where the country falls short of international human rights standards.  Here is a selection of his comments.

On extra-judicial killings:

There are also alarming reports of extrajudicial killings and the return of death squads. No matter how serious the human rights violations committed by violent gangs, all perpetrators of violence need to be held fully accountable for their actions through judicial mechanisms. Victims on all sides deserve justice.

On prison conditions:

The Extraordinary Security Measures… have placed thousands of people in prolonged and isolated detention under truly inhumane conditions, and with prolonged suspension of family visits. The vulnerability of these inmates is highlighted by an outbreak of tuberculosis, affecting more than a thousand inmates, with several hundred also said to be suffering from malnutrition. I called on the President to end the extraordinary measures and grant international independent organisations, including my Office, access to these detention centres.

On internal displacement:

I heard how the high levels of violence have seriously affected people’s lives, and I noted how such violence is increasing forced displacement within El Salvador and migration. To fully address this growing problem, the Government needs to recognise that it is happening.

On violence against women:

El Salvador has the awful distinction of having the highest rate of gender-based killings of women and girls in Central America – a region where femicide is already regrettably high, as is impunity for these crimes.

On the country’s extreme abortion law:

I am appalled that as a result of El Salvador’s absolute prohibition on abortion, women are being punished for apparent miscarriages and other obstetric emergencies, accused and convicted of having induced termination of pregnancy.

On Thursday morning, I visited the Ilopango detention centre for women on the outskirts of San Salvador and had the privilege to speak to women who were convicted of “aggravated homicide” in connection with obstetric emergencies and as a result are serving 30 years in prison. I have rarely been as moved as I was by their stories and the cruelty they have endured. It only seems to be women from poor and humble backgrounds who are jailed, a telling feature of the injustice suffered.

I call upon El Salvador to launch a moratorium on the application of article 133 of the Penal Code, and review all cases where women have been detained for abortion-related offences, with the aim of ensuring compliance with due process and fair trial standards. Should it be found their cases were not compliant, I appeal for the immediate release of these women. To establish compliance, my Office has proposed that such a review could be established by presidential decree and be carried out by an expert executive committee composed of national and international members. I asked the Government to act on this proposal and indicated the readiness of my Office to assist. This is in line with the recommendations by the Committee on the Elimination of Discrimination against Women.

On impunity for human rights abuses during the civil war:

But despite the valiant efforts of civil society and victims’ groups, only three out of more than 100 criminal complaints brought over the years have so far been reopened. Left uninvestigated and unpunished, the crimes of the past fuel patterns of violence that poison the present and can undermine the future of a society. The past and the present are a continuum, I was told in my meeting with NGOs. The victims of the past are suffering still.

On attacks on human rights advocates and journalists:

I was struck by the dedication and courage of human rights defenders and journalists in El Salvador, who face threats, intimidation and smear campaigns. I urge the authorities to investigate these attacks and to establish effective means of ensuring their protection.

On LGBTI violence:

Similar action is needed to tackle the high rate of impunity for hate crimes against LGBTI persons, especially transgender women. As one civil society representative said: “There is no public policy for us, just institutional violence.”

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*This is a re-posting with consent of El Salvador Perspectives’ November 18, 2017 post of the same name (http://www.elsalvadorperspectives.com/2017/11/a-strong-rebuke-for-el-salvador-on.html). As noted in a previous post to dwkcommentaries, we learned on November 15, 2017, that Spain’s criminal case over the 1989 murders of the Jesuit priests and two women in El Salvador will be proceeding against at least one of the former Salvadoran military officers who soon will be extradited from the U.S. to Spain, and the Jose Simeon Canas Central American University, where the murdered priests lived and worked and were murdered, will be asking for Salvadoran prosecutors to do the same for the 15 other former officers who have been charged with that crime and who are living in El Salvador.

 

 

 

 

Spain Ready to Proceed with Case Over the 1989 Killing of Jesuit Priests in El Salvador

For the last nine years, a court in Spain has been trying to obtain the presence of 20 former Salvadoran military officers to face trial on their alleged involvement in the 1989 murders of six Jesuit priests and their housekeeper and her daughter in El Salvador. Recently one of them—Inocente Orlando Montano Morales (“Montano”)—Is about to be sent to Spain for trial.[1]

 Montano

Former Colonel Montano was the deputy minister of Salvadoran Public Security from 1989 to 1992 and since April 2015 has been the subject of a judicial request by the U.S. Department of Justice for his extradition from the U.S. to Spain to face these charges.

On February 4, 2016, a Magistrate Judge in the U.S. District Court for the District Court of the Eastern District of North Carolina, after an evidentiary hearing, granted this request for extradition based upon the following conclusions: the court had personal jurisdiction over Montano; the U.S. and Spain had an extradition treaty; Montano had been charged with extraditable offenses under that treaty (the terrorist murder of five Jesuit priests of Spanish original nationality); and there was probable cause the Montano committed these offenses.[2]

Montano then exercised his only means of appealing that order by filing in April 2016 an application for a writ of habeas corpus in the same court. After briefing and a hearing, a district judge of that court in August 2017, granted the U.S. government’s motion to dismiss the application and dismissed the application.  This was based on the court’s conclusion that this extradition followed accepted practice and did not appear to be infirm; the treaty “provides for the extradition of a defendant charged with murder when committed outside the territory of the requesting nation {Spain]; . . . [its] laws allow for such a prosecution; and the laws of the requested nation [the U.S.] would allow for a prosecution in similar circumstances.”[3]

Montano then appealed this order to the U.S. Court of Appeals for the Fourth Circuit and simultaneously asked the district court for a stay or postponement of his extradition. This was denied by the district court on September 6 after concluding that he has “failed to make a strong showing that he is likely to succeed on the merits [of his appeal]” and “cannot demonstrate that he will suffer irreparable injury in the absence of a stay.” Thereafter simple denials of the request for a stay were entered on September 28 by the Fourth Circuit and on November 15 by U.S. Supreme Court Chief Justice John Roberts.[4]

Undoubtedly important in Chief Justice Roberts’ denial of a stay was the brief in opposition to such a stay that was submitted by the U.S. Solicitor General, the principal attorney for the U.S. in the U.S. Supreme Court. In its first three of 29 pages, before setting forth a detailed review and approval of the lower courts’ actions, that brief set forth the following facts from the record: “Toward the end of that war [between the military –led government and a leftist guerrilla group]– on November 16, 1989—members of the El Salvador Armed Forces . . . murdered six Jesuit priests, their housekeeper, and the housekeeper’s daughter at the Universidad Centroamerica (UCA) in El Salvador. . . . Five of them were Spanish nationals.” Moreover, evidence submitted by the Spanish authorities showed that “in the days leading up to the murders, the . . .  radio station that [Montano] oversaw made threats against the Jesuit priests; that on the day before the murders, [Montano] participated in a meeting at which one of this fellow officers gave the order to kill the priests; that [Montano] provided ‘necessary information’—namely, the location of one of the priests—to those who carried out the murders; and that following the murders, [Montano] attempted to conceal [the Armed Forces] involvement by threatening the wife of a witness.”[5]

The Solicitor General concluded his brief with these comments: “the [U.S.] has a strong interest in having extradition requests resolved without undue delay, both to comply with its treaty obligations and to further its reciprocal interest in having other Nations cooperate swiftly with its own extradition requests and other law enforcement objectives.” Moreover, “Spain is an important partner of the [U.S.] in terrorism and other cases of national importance, and timely compliance with its extradition requests advances the [U.S.’] foreign policy and law enforcement interests.” (Pp. 27-28.)

As a result, Montano is now headed for imminent extradition to Spain. Almudena Bernabéu, an expert from the Center for Justice and Accountability (CJA) and a private prosecutor of the Jesuits case in Spain with her organization Guernica 37, said about four weeks ago the State Department determined that extradition was appropriate. “From that moment, the two countries are ready for delivery and reception of Montano, but they did not want to do it” until he had exhausted all of his U.S. remedies.

Other Former Salvadoran Military Officers

Of the other 19 former Salvadoran military officers charged with this horrible crime, one was convicted of the crime in El Salvador and was re-imprisoned after its Supreme Court invalidated its Amnesty law, one (former Defense Minister Emilio Ponce) is deceased and two others are cooperating with the Spanish prosecutors (Yussy Mendoza and Camilo Hernandez).

These other 15 still live in their home country, but its Supreme Court twice (2012 and 2016) has denied their extradition to Spain.

Manuel Escalante, a human rights lawyer at Jose Simeon Canas Central American University, where the murdered priests lived and worked and were murdered, after learning of the imminent extradition of Montano, called for prosecution of the 14 in El Salvador. He said that a conviction in Spain would be a big step toward “eliminating historical impunity” and that Salvadoran prosecutors must also act to advance the case in the Central American nation. The victims and their defenders “are going to seek justice. We are going to ask for the reopening of the trial.”[6]

The university, however, previously had said it considers the case closed against those who carried out the killings and even has called for clemency for former Col. Guillermo Benavides, who has served four years of a 30-year sentence as the only military official in prison for his role in the crime.

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[1] The charges subsequently were reduced to terrorist murder of the five priests of original Spanish nationality as a result of an amendment to Spain’s statute on universal jurisdiction. The priests, their murders, judicial proceedings about this crime, including the Spanish case, and these extradition proceeding have been discussed in the posts listed in “The Jesuit Priests” section in List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2]  Certification of Extraditability & Order of Commitment, In re Request by Spain for the Extradition of Montano, Montano v. Elks. No. 2:15-MJ-1021-KS (E.D.N.C. Feb. 5, 2016).

[3] Order, Montano v.  Elks, No. 5-16-HC-2066-BO (E.D.N.C. Aug. 21, 2017).

[4] Order, Montano v.  Elks, No. 5-16-HC-2066-BO (E.D.N.C.. Sept. 6, 2017); Order, Montano v.  Elks, N0. 17-7091 (4th Cir. Sept. 28, 2017); Order, Montano v.  Elks, No. 17A445 (U.S. Sup. Ct. Nov. 15, 2017); Drew, Last hurdle cleared for ex-Salvadoran official’s extradition, Assoc. Press (Nov. 15, 2017); Labrador & Rauda, Colonel Montano to Spain for the  murder of the Jesuits, El Faro (Nov. 15, 2017); Progress in Jesuit murder case on 28th anniversary, El Salvador Perspectives (Nov. 16, 2017); Alonso, The Supreme Court of the United States approves extraditing a Salvadoran ex-military man to Spain for the killing of the six Jesuits, El Pais (Nov. 15, 2017).

[5] Memorandum for the Federal Respondents in Opposition, Montano v. Elks, No. 17A445 (U.S. Sup. Ct. Nov. 8, 2017).

[6] Assoc. Press, El Salvador Jesuits Seek Reopening of Case in 1989 Massacre, N.Y. Times (Nov. 16, 2017); Lafuente, A halo of justice in the killing of the Jesuits in El Salvador, El Pais (Nov. 17, 2017.

Emerging Development of Cuba’s Mariel Port 

Only 28 miles west of Havana, Cuba has been developing the Mariel Special Economic Development Zone around a deep-water port. Now this project is reaching fruition.[1]

With a goal of becoming a bustling commercial city built on high-tech, advanced manufacturing and sustainable development, the Zone of 115,000 acres now has large tracts of land leveled and ready for construction of the following two major manufacturing operations:

  • The BrasCuba factory — a joint venturebetween Brazil’s Souza Cruz and Cuba’s Tabacuba–will turn out Popular, Cohiba and H. Upmann cigarettes for export and the domestic market.
  • Womy Equipment Rental, a Dutch company that rents cranes and other heavy equipment, has just finished its building as shown in this photograph.

In addition, a site has been prepared for a Cuban biotech factory, and two foreign companies–BDC-Log and BDC-Tec– have begun operating in the zone’s logistics sector.

Although only nine companies are currently operating there, another 18, including firms from Spain, the Netherlands, Panama, Brazil, Mexico, South Korea, Vietnam, France, Belgium, and Cuba itself have been approved and are getting ready to start.

The port has more than 2,300 feet of wharf space, four super Post-Panamax cranes and the capacity to handle 820,000 cargo containers annually.

In light of President Trump’s June 2017 announcement of still forthcoming regulatory restrictions on U.S. business’ doing business in Cuba, U.S. firms have been reluctant to make commitments for Mariel projects.

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[1] Whitefield, Mariel is Cuba’s big industrial gamble. Could U.S. companies be among investors?, Miami Herald (Oct. 23, 2017). An earlier blog post discussed potential U.S. interest in Mariel.

Cuba Pays $60 Million of Indebtedness to Major Creditor Nations     

The week of October 15 Cuba paid $60 million of indebtiness to 14 wealthy creditor nations. Last year Cuba paid $40 million to the same group. The total debt is $2.6 billion after the creditors in 2015 forgave $8.5 billion of $11.1 billion upon which Cuba had defaulted through 1986 plus charges.[1]

These creditor nations known as the Club of Paris are the following: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Italy, Japan, the Netherlands, Spain, Sweden, Switzerland and the United Kingdom.

Under the 2015 agreement, Cuba agreed for the first time to grant the creditors equity in development projects, in areas like manufacturing and agriculture, in exchange for a portion of their debt holdings. Many of these restructuring agreements include the establishment of so-called counter-value funds, under which a percentage of debt is discounted in exchange for the potential profits stemming from participation by a creditor country’s firms in Cuba joint-development projects.

The counter-value funds have an estimated combined value of around $750 million of the $2.6 billion owed. Japan, Spain, France and Italy – Cuba’s largest Paris Club creditors – are furthest along in negotiating swaps.

  • For example, a $46 million French project to develop cattle ranching and dairy products in central Camaguey province is ready to sign, according to France’s ambassador to Cuba, Jean-Marie Bruno.
  • Another example is Spain which has a project ready to manufacture cardboard and another aluminium structures for construction capable of resisting earthquakes and hurricanes, both involving Spanish companies.

This access to Cuban development projects gives the European countries and companies an advantage over U.S. companies who are banned by various U.S. laws from such projects.

This payment happened during dire economic times for Cuba due to the political and economic crisis in its ally Venezuela, declines in Cuban exports and tourism due, in part, to the damages caused by Hurricane Irma.

Cuba’s payment in these circumstances showed the importance Cuba attaches to the 2015 agreement with this group of major creditor nations.

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[1] Reuters, Cash-Strapped Cuba Makes Debt Payment to Major Creditors-Diplomats, N.Y. Times (Oct. 18, 2017); Chow, Cuba Reaches Deal to Pay $2.6 Billion in Arrears to Paris Club, W.S.J. (Dec. 12, 2015); Paris Club, Agreement on the Debt Between Cuba and the Group of Creditors of Cuba (Dec. 12, 2015).

President Raúl Castro Discusses Cuba-U.S. Relations

On July 14, Raúl Castro Ruz, Army General, First Secretary of the Communist Party of Cuba Central Committee and President of the Councils of State and Ministers, addressed a session of Cuba’s legislature (the National Assembly of People’s Power).[1]

A previous post discussed his remarks about Cuba’s private sector. He also made the following comments about the history of Cuba-U.S. relations.[2]

Present Castro’s Comments

President Trump’s Policies Regarding Cuba

“This past June 16, the President of the [U.S.], Donald Trump, announced his administration’s policy toward Cuba, nothing novel for sure, since he retook a discourse and elements from the confrontational past, which showed their absolute failure for over 55 years.”

“It is evident that the U.S. President has not been well informed on the history of Cuba and its relations with the [U.S.], or on the patriotism and dignity of the Cuban people.”

Cuba-U.S. Relations, 1789-2014

“History cannot be forgotten, as they have at times suggested we do. For more than 200 years, the ties between Cuba and the [U.S.] have been marked, on the one hand, by the pretensions of the northern neighbor to dominate our country, and on the other, by the determination of Cubans to be free, independent, and sovereign.”

“Throughout the entire 19th century, invoking the doctrines and policies of Manifest Destiny, of Monroe, and the ‘ripe fruit,’ different U.S. administrations tried to take possession of Cuba, and despite the heroic struggle of the mambises,[3] they did so in 1898, with a deceitful intervention at the end of the war which for 30 years Cubans had waged for their independence, and which the U.S. troops entered as allies and then became occupiers. Negotiating with Spain behind Cuba’s back, they militarily occupied the country for four years, demobilizing the Liberation Army, dissolving the Revolutionary Cuban Party – organized, founded, and led by Martí – and imposed an appendix to the Constitution of the nascent republic, the Platt Amendment, which gave them the right to intervene in our internal affairs and establish, among others, the naval base in Guantánamo, which still today usurps part of the national territory, the return of which we will continue to demand.”

“Cuba’s neocolonial condition, which allowed the [U.S.] to exercise total control over the economic and political life of the island, frustrated, but did not annihilate, the Cuban people’s longing for freedom and independence. Exactly 60 years later, January 1, 1959, with the triumph of the Revolution led by Comandante en Jefe Fidel Castro, we became definitively free and independent.”

“From that moment on, the strategic goal of U.S. policy toward Cuba has been to overthrow the Revolution. To do so, over more than five decades, they resorted to dissimilar methods: economic war, breaking diplomatic relations, armed invasion, attempts to assassinate our principal leaders, sabotage, a naval blockade, the creation and support of armed bands, state terrorism, internal subversion, the economic, commercial, financial blockade, and international isolation.”

Cuba-U.S. Relations, 2014-2017

“Ten administrations held office until President Barack Obama, in his statement of December 17, 2014, without renouncing the strategic goal, had the good sense to recognize that isolation had not worked, and that it was time for a new focus toward Cuba.”

“No one could deny that the [U.S.], in its attempts to isolate Cuba, in the end found itself profoundly isolated. The policy of hostility and blockade toward our country had become a serious obstacle to relations with Latin America and the Caribbean, and was rejected almost unanimously by the international community. Within U.S. society, growing majority opposition to this policy had developed, including among a good portion of the Cuban émigré community.”

“In the Sixth Summit of the Americas in Cartagena de Indias, Colombia, in 2012, Ecuador refused to participate if Cuba was not permitted to attend, and all Latin American and Caribbean countries expressed their rejection of the blockade and Cuba’s exclusion from these events. Many countries warned that another meeting would not take place without Cuba. As such, we arrived in April 2015 – three years later – to the Seventh Summit in Panama, invited for the very first time.”

“Over the last two years, and working on the basis of respect and equality, diplomatic relations have been reestablished and progress made toward resolving pending bilateral matters, as well as cooperation on issues of mutual interest and benefit; limited modifications were made to the implementation of some aspects of the blockade. The two countries established the bases from which to work toward building a new type of relationship, demonstrating that civil coexistence is possible despite profound differences.”

“At the end of President Obama’s term in office, the blockade, the Naval Base in Guantánamo, and the regime change policy, remained in place.”

Cuba-U.S. Relations, 2017–

“The announcements made by the current U.S. President, last June 16, represent a step back in bilateral relations. This is the opinion of many people and organizations in the [U.S.] and around the world, who have overwhelmingly expressed their outright rejection of the announced changes. This sentiment was also expressed by our youth and student organizations, Cuban women, workers, campesinos, Committees for the Defense of the Revolution, intellectuals, and religious groups, on behalf of the vast majority of the nation’s citizens.”

“The U.S. government has decided to tighten the blockade by imposing new obstacles on its businesspeople to trade and invest in Cuba, and additional restrictions on its citizens to travel to the country – justifying these measures with out-dated rhetoric regarding the Cuban people’s exercise and enjoyment of human rights and democracy.”

“President Trump’s decision disregards the support of broad sectors of U.S. society, including the majority of Cuban émigrés, for lifting of the blockade and normalization of relations, and only satisfies the interests of an increasingly isolated, minority group of Cuban origin in South Florida, who insist on harming Cuba and its people for having chosen to defend, at any cost, their right to be free, independent, and sovereign.”

“Today, we reiterate the Revolutionary Government’s condemnation of measures to tighten the blockade, and reaffirm that any attempt to destroy the Revolution, whether through coercion and pressure, or the use of subtle methods, will fail.”

“We likewise reject manipulation of the issue of human rights against Cuba, which has many reasons to be proud of its achievements, and does not need to receive lessons from the [U.S.] or anyone else.”

“I wish to repeat, as I did so in the CELAC Summit held in the Dominican Republic in January of this year, that Cuba is willing to continue discussing pending bilateral issues with the [U.S.], on the basis of equality and respect for the sovereignty and independence of our country, and to continue respectful dialogue and cooperation in issues of common interest with the U.S. government.”

“Cuba and the [U.S.] can cooperate and coexist, respecting our differences and promoting everything that benefits both countries and peoples, but it should not be expected that, in order to do so, Cuba will make concessions essential to its sovereignty and independence. [N]or will it negotiate its principles or accept conditions of any kind, just as we have never done throughout the history of the Revolution.”

“Despite what the government of the [U.S.] does, or does not decide to do, we will continue advancing along the path sovereignly chosen by our people.”

Conclusion

Castro’s review of the history of these relations was succinct, fact-based, fair and necessary for the two countries’ moving forward in a positive direction.

Moreover, the two countries, as Castro said, should be “willing to continue discussing pending bilateral issues . . . on the basis of equality and respect for the sovereignty and independence of [each] country, and to continue respectful dialogue and cooperation in issues of common interest.” The two countries should be able to “cooperate and coexist, respecting our differences and promoting everything that benefits both countries and peoples.”

These principles should govern U.S. relations with Cuba and every other country in the world.

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[1] Castro Ruz, We will continue to advance along the path freely chosen by our people, Granma (July 17, 2017).

[2] Various aspects of this history have been discussed in the posts identified in List of Posts to dwkcommentaries–Topical: CUBA.

[3]Mambises” refers to the guerrilla Cuban independence soldiers who fought against Spain in the Ten Years’ War (1868–78) and Cuban War of Independence (1895–98).

 

More Delay in U.S. Extradition of Former Salvadoran Military Officer to Spain     

One of the suspects who is sought by a Spanish court to face criminal charges in the 1989 murders of six Jesuit priests in El Salvador is Inocente Orlando Montano Morales. As he had been living in the U.S., he is now the subject of proceedings in U.S. federal court for extradition to Spain.

A post last month reported the delay in those U.S. proceedings because of his poor health. That has not changed in the last six weeks.

With respect to his health, he was not transferred to the Federal Medical Center at Butner, North Carolina but instead to the Piedmont Regional Jail, which reportedly had adequate facilities for his care. After Montano challenged that care and after the filing of statement of a Nurse-Practitioner and the Head Nurse at the Regional Jail, the court in May affirmed its prior denial of Montano’s motion for conditional release.[1]

In early June, however, Montano’s health worsened, and the Government was in the process of having him transferred to the Columbia Regional Care Center in Columbia, South Carolina, which will be able to provide “a higher level of medical and nursing care.”[2]

In the meantime, both parties filed briefs on the merits.

Montano’s attorney argued that Spain’s attempted exercise of extraterritorial jurisdiction over Montano would be arbitrary, fundamentally unfair and unreasonable. First, the underlying Spanish criminal statute requires an act by a “terrorist,” but “it is unlikely that a cabinet member of a government recognized by the [U.S.] and Spain [as El Salvador’s was] would ‘reasonably anticipate being . . . charged with being a terrorist.” Second, extradition of Montano would violate due process because he has had “absolutely no contacts with Spain” and because the five murdered priests in this case left Spain in the 1950’s and at least three of them had acquired Salvadoran nationality and thereby lost their Spanish nationality. Third, Spain’s assertion of extraterritorial jurisdiction over Montano violates international law.[3]

The U.S. Government responded. The U.S. asserted the Magistrate Judge properly had found that extradition would be lawful because under the U.S.-Spain extradition treaty the U.S. could charge someone under a U.S. statute for a similar crime in compliance with due process requirements.[4]

Now we wait to see if Montano’s health stabilizes and if the court will issue a decision on the merits.

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[1] Notice of Petitioner’s Treatment at Piedmont Regional Jail, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 23, 2017); Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 25, 2017); Response to Petitioner’s Notice of Treatment at Piedmont Regional Jail, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 25, 2017); Statement by Donna McLean, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C.); Notice of Filing of Ann Smith, R.N.,] Statement in Response to Court’s Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 26, 2017 May 26, 2017); Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 26, 2017).

[2] Notice of Petitioner’s Condition and Treatment at Piedmont Regional Jail, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. June 14, 2017); Notice Regarding Petitioner’s Current Medical Condition, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. June 14, 2017),

[3] Response to Court’s March 27, 2017 Order and Response to Government’s Amended Memorandum in Support of Motion To Dismiss,, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 9, 2017).

[4] Reply in Support of Amended Motion To Dismiss Application for Writ of Habeas Corpus, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 19, 2017).

Further Delay in Extradition of Former Salvadoran Military Officer to Spain   

A post last month discussed the U.S. district court’s delay of proceedings regarding the proposed extradition of Inocente Orlando Montano, a former Salvadoran military officer, to Spain for trial for his alleged participation in the 1989 murders of Jesuit priests in El Salvador. The reason was the court’s desire for additional briefing on some of the issues.

Additional proceedings on the merits have been further delayed due to the poor health of the 75-year old Montano resulting in the court’s April 28 order to have him transferred to the Federal Medical Center at Butner, North Carolina for “acute care.” This was based upon his attorneys’ report that he was suffering from “numerous ailments beyond those associated with a man of his age. His bladder cancer left him dependent on a colostomy bag. He remains susceptible to a re-occurrence of a C-Diff infection which is difficult to diagnose and treat. During the nearly four years of his incarceration – 21 months for the immigration conviction and 2 years during these extradition proceedings – he developed Type II diabetes. He also increasingly suffers from arthritis in his legs and cannot move without a walker.”[1]

In the meantime the U.S. submitted a brief addressing whether the U.S.-Spain extradition treaty’s requirement for “dual criminality” was satisfied and whether U.S. due process requirements would be met by an extradition of Montano.[2]

Dual Criminality Requirement Was Met

The U.S. asserted that this requirement meant that “the acts or conduct underlying the [Spanish] charges would be proscribed by similar criminal provisions under either U.S. federal law, the law of the state where the [extradition] hearing is held, or the law of a preponderance of the states.” (P. 23)

Here, according to the U.S. brief, the Spanish charges were under its terrorist murder statute, and while a U.S. federal statute (18 U.S.C. § 2332), as the Magistrate Judge found, was not identical, “the primary distinction is one of scope, not character.” Indeed, “the basic evil proscribed by both countries’ statutes is murder.” (Pp. 23-24)

Moreover, said the U.S. brief, “the murder of a U.S. citizen abroad under circumstances similar to those” involved in the murder of the Jesuit priests who were Spanish citizens in El Salvador would be a crime under U.S. federal law. (P. 25)

Extradition Here Would Satisfy U.S. Due Process

The U.S. brief also asserted the validity of the Magistrate Judge’s conclusion that “it is well-established that Congress may criminalize extraterritorial conduct” and doing so when a U.S. citizen is murdered abroad is a valid exercise of that power and does not violate due process when anyone would know that murder is proscribed. “Protection of one’s citizens from murder [in another country] implicates a significant national interest, and enforcement of that interest is not arbitrary.” (Pp. 31-34)

Conclusion

Now we wait to see if Montano’s attorney responds to the government’s brief on the merits and whether Montano’s health will permit further proceedings.

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[1] Motion for Conditional Release During Pendency of Habeas Proceedings, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 7, 2017); Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 28, 2017).

[2] Amended Memorandum in Support of Motion To Dismiss Application for Writ of Habeas Corpus, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 17, 2017).