Torture Victims Protection Act (TVPA)

Reflections on Learning and Teaching

As a student of history, economics, political science, law and other humanities courses at six colleges and universities[1] and as an instructor at three such institutions,[2] I have participated in different ways of instructing and learning such bodies of knowledge and skills: college and university lectures, other lectures; seminars, research and writing; tutorials; the Socratic method; and role-playing. Similar methods were used in my practice as a litigating attorney and now as a blogger and ordinary citizen. Underlying all of them, of course, are reading and studying. Here are a septuagenarian’s lessons in life-long learning.

My thinking about this subject and writing this blog post were prompted by a recent article about the lecture as a mode of instructing and learning. That article by Molly Worthen, an Assistant Professor of History at the University of North Carolina, Chapel Hill, was put into a broader context by her quoting John Henry Newman’s “The Idea of a University,” where he said the humanities taught a student “to disentangle a skein of thought, to detect what is sophistical, and to discard what is irrelevant.” Such a student learns “when to speak and when to be silent. He is able to converse, he is able to listen.”[3]

College and University Lectures

“A good lecture class,” Worthen says, teaches “comprehension and reasoning” by keeping “students’ minds in energetic and simultaneous action.” It does so by emphasizing “the art of attention, the crucial first step in … ‘critical thinking.’” She quotes Monessa Cummins, the Chair of the Classics Department at Grinnell College, my alma mater, as saying the lecture places “a premium on the connections between individual facts . . . [and] the building of an argument.”

This is “hard work” for the students, Worthen adds, requiring them “to synthesize, organize and react as they listen.” Indeed, students need to be taught how to listen, and lecture courses are exercises in “mindfulness and attention building.” This skill cannot be assumed, but must be taught. One way of doing so, in Professor Cummins’ classes, is to assign one student in each session to present a critique of her argument at the subsequent small discussion section.

Such a lecture course teaches that “listening is not the same thing as thinking about what you plan to say next–and that critical thinking depends on mastery of facts, not knee-jerk opinions.“

This is enhanced, Worthen argues, by requiring the students to take notes by hand, not by typing them into a computer. The former makes it impossible for them to make verbatim transcripts of the lecture, but instead to synthesize as they listen. That may be true, in my opinion, when the lecturer does not provide the students or audience with an outline of the lecture.

Lecturing, on the other hand, with a PowerPoint outline and providing the students or audience members with the Notes Page version of the outline enables the student to glance at the entire presentation in advance and see how the individual points fit into the entire lecture or presentation and then add his or her notes to individual pages as the lecture proceeds. PowerPoint also facilitates the use of graphs, maps and photographs in the lecture. [4]

Worthen also recognizes the utility of combining a large lecture session with small discussions sections and thereby obtain the reactions and comments of the students.

My memories of my first exposure as a student to lecturing 58 years ago as a freshman at Grinnell College are fuzzy at best, but I do not recall being provided with tips on how to take full advantage of this form of instruction. I now wish I had been told how to listen, to be mindful and to synthesize as I listened. I wish I had had a professor assign one student in each session to present a critique of the lecture’s argument at the next class session. Of course, then all notes of a lecture were handwritten.

As a student of Philosophy, Politics and Economics (PPE) at the University of Oxford, 1961-1963, attendance at university lectures on these subjects, often by world-famous scholars, was optional. I attended some primarily to see and hear such people as philosophers A. J. Ayer and Gilbert Ryle, economist J. R. Hicks and legal philosopher H. L. A. Hart, but regrettably I did not regularly do so. (Instead my attention was focused on tutorials as discussed below.)

As a law student at the University of Chicago, 1963-1966, the Socratic method was the dominant form of instruction, not lectures. The latter instead were formal occasions for all the students and faculty, usually provided by visiting scholars and judges. (The Socratic method also will be discussed below.)

In addition, I was a lecturer when I taught a course on the American Civil Law System at Grinnell while on sabbatical leave from my law firm, when I was a Practitioner in Residence at the University of Iowa College of Law, when I was an Adjunct Professor at the University of Minnesota Law School and when I was on the faculty of various continuing legal education courses while I was a practicing lawyer. That experience required me to review the material to be covered, to conduct any additional research I deemed necessary, to determine the main points to emphasize, to construct an outline for what I wanted to cover in the lecture and, in some cases, to prepare a PowerPoint presentation for use at the lecture.

Other Lectures

All of us obtain information and are educated, or not, in other oral presentations throughout our lives. I think of major political speeches like the State of the Union and Inaugural Addresses; other speeches at public events; and sermons at churches.

When, for example, I listen to speeches or presentations at the Westminster Town Hall Forum, I sometimes take handwritten notes and submit proposed questions for the moderator to ask the speaker. Later I also can go to the Forum’s website to re-listen to the speech. I also have written blog posts about some of these presentations. Another recent source of lectures for me is those offered by the Osher Lifelong Learning Institute (OLLI) of the University of Minnesota.

For sermons at Westminster Presbyterian Church, I sometimes make handwritten notes of some of the points on the church bulletin in my hands while the morning prayer, hymns and choral anthems usually emphasize some of the sermon’s main points. I also have found that I learn more about the sermon’s lesson by reading its text when it is subsequently posted on the church’s website and by reading and reflecting on the Scripture passages for the sermon; additional insight is often providing by writing a blog post about a sermon.

Seminars

My best educational experience at Grinnell College was taking the Political Economy Seminar my senior year with nine other students and with faculty from the economics, history and political science departments. We read important books in the field, not textbooks, and wrote and presented our papers on the former for discussion by all.

The Washington Semester at American University in the Fall of 1959 provided another type of seminar experience as a group of students from all over the U.S. met with politicians, government officials and others to learn about the operations of the U.S. government and political process.

I also organized and led a liberal arts seminar for lawyers at Grinnell in 1984. After reading various materials, we gathered at the College to discuss American legal history, alternative dispute resolution (ADR), jurisprudence and the lives and challenges of being humane judges and lawyers. Our leaders were a federal appellate judge, a national ADR scholar, an American history professor, a jurisprudence professor and a practicing lawyer.

Being in a book group, for me at Westminster Presbyterian Church, is another seminar experience for groups of 12 or smaller. Reading an assigned book and then gathering for a discussion of the book led by one of the group usually leads to a greater understanding of the book and its issues. For example, I recently led my group in discussing David Brooks’ “The Road to Character” after I had written about the book in this blog.[5]

Research and Writing

During my student years I conducted factual and other research about various subjects and in the process learned a lot about those subjects as well as research skills. The task of then reducing that research into a paper on the subject provided more learning about the subject plus the process of writing such papers. Later as a practicing lawyer these skills were further developed with the aid of the legal process for obtaining evidence in lawsuits, including the examination of witnesses, and the writing of briefs and other legal papers under rules for their contents and length.

The student research paper I best recall was at American University. The topic was how political interest groups participate in important cases in the U.S. Supreme Court and more specifically in contempt-of-congress cases in that court. I identified such cases, read the Court’s opinions in the cases, interviewed staffers at the relevant congressional committees (especially the House Un-American Activities Committee) and at the relevant political interest groups (especially the American Civil Liberties Union and the American Association of University Professors) and then spent a lot of time at the Supreme Court’s Library reading the briefs in the case, including those from the ACLU and the AAUP as amici curiae (friends of the court). The paper summarized this research and conclusions.

My enjoyment of research and writing continued as a practicing lawyer, both in my work as a lawyer and as a putative scholar. For example while at Harvard Law School for a short summer course, I spent time in its library doing research about Joseph Welch and Edward Burling, both prominent attorneys who were graduates of that Law School and of Grinnell College, and interviewing attorneys at Welch’s Boston law firm, about his representation of the U.S. Army in the McCarthy hearings of 1954. Later I wrote articles about both of them for the Grinnell Magazine [6] and even later with excerpts from the Welch article in this blog.[7]

A similar process was involved as a law student in researching and writing comments for the law review and as a lawyer in writing briefs.

Grinnell College recently has enhanced its use of research and writing as an educational method by adding a public website, The Grinnell Post, that hosts student essays about current events, public debates, and issues of interest to the Grinnell community. Its mission is to allow students to share their work in a public forum and foster conversations with a diverse readership and solicit their comments and criticism.

Another Grinnell effort to incorporate digital technology in the liberal arts is a website, Ashplan, initially devoted to James Joyce’s Ulysses. It seeks to foster the inheritance of classroom culture; that is, it forges connections among students studying the same material at different times, allowing new students to benefit from, remix, and add to the work of their predecessors.

Tutorials

As discussed in a prior post, the tutorial was the primary mode of undergraduate education at Oxford. During each week of the three terms of the academic year, I would have two tutorials, usually with only one other student and the tutor and sometimes only by myself with the tutor. The assignment was always in the form of a question with the tutor’s suggestions of books and articles one should read.

As a result, most of my time each week at Oxford was spent in the university libraries reading those sources and other relevant materials, figuring out how I would answer the assigned question and writing an essay setting forth that answer and analysis. Then I would see the tutor again and read my essay for critiquing and discussion.

I loved the independence of this system and being “forced” to come to a conclusion on an issue and to construct my own analysis and documentation for my conclusion. This was exactly the skill that was tested in Oxford’s university-wide examinations at the conclusion of my student-years, as also discussed in a prior post.

Grinnell College now has a First-Year Tutorial for all freshmen in groups of about 12 students that are led by “faculty members . . . from all academic departments . . . in more than 35 topics.” For the Fall of 2015 these include “Crisis, Liberation, Justice, and Leadership;“ “Racism: Color, Culture, Class; “ and “The Origins of Capitalism.” Every tutorial emphasizes writing, critical thinking and analysis, and oral presentation and discussion skills. The tutorial professors also serve as the advisers to their tutorial students until they declare a major field of study.

Socratic Method

After the treasured independence of the Oxford undergraduate experience, I initially was shocked in my first weeks in the Fall of 1963 as a student at the University of Chicago Law School. Now I was in large classes with daily assignments of certain pages in our large casebooks. The professors did not lecture. Instead they cross-examined individual students, one-by-one, about what the holding of a particular case was and what the result should be in a hypothetical case. We were being taught, we were told, how to think like a lawyer.

This method clearly taught you how to read a judicial opinion very carefully (and very painfully and slowly during that first semester of law school), to analyze that opinion to determine what its holding was and to think about the arguments that could be raised in similar, but different, hypothetical cases. Then in class you had to learn how to think on your feet and respond to questions from the professor as you would later do as a lawyer when questioned by a judge.

Reading and analyzing constitutions, statutes and regulations are also important for a lawyer, but I do not have clear memories of how that was done in my law student years. Of course, many judicial opinions concern judicial interpretations of such materials, and the overall law-school emphasis on reading and analyzing judicial opinions covered that methodology.

Learning how to do legal research and write legal briefs is another important part of law school. In addition, being a member of a law review staff and editorial board gives experience in writing and editing articles about legal topics.

Role-Playing

Participating in moot courts and playing the role of a lawyer making an argument to a court is another prominent method of legal education. I did not take advantage of this opportunity in law school as I was busy working on the law review doing legal research and writing and editing articles for the journal.

I, however, employed this method when I taught for one semester at Grinnell while on sabbatical leave from my law firm. I acted as a trial court judge hearing arguments by students as lawyers on a motion to compel production of a college tenure committee records in a hypothetical lawsuit brought by a professor against a college for denial of tenure. A different kind of role playing in that course was having the students, in lieu of a final examination, play the role of a justice of the Iowa Supreme Court and write an opinion deciding a case after reading the briefs in the case along with my memoranda summarizing some of the legal issues and after hearing the case argued before the actual Court.

I also used the moot-court method when I was an adjunct professor at the University of Minnesota Law School; I acted as a federal district court judge hearing arguments on a motion to dismiss a complaint under U.S. federal statutes (the Alien Tort Statute and the Torture Victims Protection Act) alleging a corporate defendant’s violations of human rights in other countries. I also acted as a judge of an immigration court to hear arguments on whether the court should grant an application for asylum by someone who allegedly had a well-founded fear of persecution in his or her home country due to political opinion or other protected ground.

I used a different kind of role-playing when I was a Practitioner in Residence at the University of Iowa College of Law. In a first-year civil procedure class, I played the role of a law firm partner while the students played the roles of associate attorneys working for me as we collectively identified issues, potential arguments and additional legal research needed for preparing a civil complaint under the strictures of Rule 11’s requiring such a pleading to be warranted by existing law or a non-frivolous argument for changing the law and by evidentiary support.

In such role-playing exercises, the student learns about procedural and substantive law, identification of legal and evidentiary issues and how to write and analyze briefs and make oral arguments.

In my experience, this is an effective way of learning several areas of law plus the skills of advocacy, and most students appreciate these opportunities to have a taste of what it is like to be a lawyer.

Conclusion

I am fortunate to have experienced different methods of teaching and learning from able practitioners of the different methods. I have learned in each of these settings and cannot say one is better than another. A lot depends on the size of the audience and the stage of your educational career. Seminars and tutorials require a small number of students while lectures are more appropriate, if not required, for a large number of students. I hope that I have been able to convey the same excitement of learning when I have been the instructor.

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

[1] Grinnell College, 1957-1961; American University (Washington Semester), 1959; University of Oxford, 1961-1963; University of Chicago Law School, 1963-1966; Harvard Law School (Summer Program), 1986; and University of Minnesota Law School, 2001.

[2] Grinnell College, 1982, 1984; University of Iowa College of Law, 1986; and University of Minnesota Law School, 2002-2010.

[3] Worthen, Lecture Me. Really, N.Y. Times Sunday Review (Oct. 18, 2015).

[4] Aaron Fichtelberg, an associate professor of criminal justice at the University of Delaware, strongly disagrees on the value of PowerPoint. Indeed, he argues that it “turns good teachers into mediocre ones and mediocre lectures into a sludge of unengaging facts.” According to him, it “forces rigidity on the content of the course and passivity onto the students.” I agree that sometimes such use is boring. But as with all of these modes of teaching, there are the good and the bad. Other opinions?

[5] The Important Moral Virtues in David Brooks’ “The Road to Character” (May 1, 2015); David Brooks’ Moral Exemplar (May 2, 2015); David Brooks Speaks on the Role of Character in Creating an Excellent Life (May 16, 2015).

[6] Good Night, and Good Luck: The Movie’s Offstage Hero, Joseph Welch, Grinnell Magazine, Summer 2006, at 12; Edward Burnham Burling, Grinnell’s Quiet Benefactor, Grinnell Magazine, Summer 2009, at 21.

[7] Joseph Welch Before the Army-McCarthy Hearings (June 14, 2012); The U.S. Army’s Hiring of Attorney Joseph Welch for the Army-McCarthy Hearings (June 8, 2012); Attorney Joseph Welch’s Performance at the Army-McCarthy Hearings (June 6, 2012); U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch (June 4, 2012); President Dwight D. Eisenhower’s Involvement in the Army-McCarthy Hearings (June 10, 2012); Joseph Welch After the Army-McCarthy Hearings (June 12, 2012); Legal Ethics Issues in the “Anatomy of a Murder” Movie (June 12, 2012).

U.S. Board of Immigration Appeals Decides Former Salvadoran General Should Be Deported

On March 10, 2015, the U.S. Board of Immigration Appeals (BIA) decided that former Salvadoran General Vides Casanova should be deported from the U.S. [1]

This was the conclusion of the BIA in dismissing Casanova’s appeal from an immigration judge, after trial, deciding that he had had a direct role in the abuse and killings of civilians because of his “command responsibility” as the top military officer of that country. “This is not a case in which isolated or random human rights abuses took place at the hands of rogue subordinates,” the BIA said. General Vides “affirmatively and knowingly shielded subordinates from the consequences of their acts and promoted a culture of tolerance for human rights abuses.”

Specifically in the case of the December 1980 rapes and murders of the four American churchwomen, the Board found that General Vides “knew that National Guardsmen confessed to involvement in the murders, failed to competently investigate the Guardsmen under his command, obstructed the United States’ efforts to investigate, and delayed bringing the perpetrators to justice.” [2]

The BIA decision also reviewed the torture of two Salvadorans, Juan Romagoza Arce and Daniel Alvarado:

During 22 days in 1980, Mr. Romagoza was “beaten, shocked with electrical probes all over his body, sexually assaulted with a stick, and hung from the ceiling for several days” and also shot in the arm, his wounds left to fill with worms. Mr. Romagoza reported that General Vides saw him twice during his captivity.
Alvarado was tortured for seven days until he falsely confessed to killing a U.S. military adviser, but after an F.B.I. investigation, U.S. officials repeatedly advised General Vides, according to the Board’s decision, that his forces were holding and torturing the wrong man. [3]

As the BIA said, “Congress clearly intended that commanders should be held accountable if their subordinates commit torture and extrajudicial killings.”

General Vides has a right to appeal the BIA’s decision to a U.S. court of appeals so we wait to see if that will happen and the results of any such appeal.

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

[1] Matter of Carlos Eugenio Vides Casanova, 26 I&N Dec. 494 (BIA 2015); Preston, General in El Salvador Torture and Killings Can Be Deported, Immigration Court Rules, N.Y. Times (Mar. 11, 2015). Prior posts reviewed the American churchwomen’s work in El Salvador; their 1980 murders; my pilgrimage to the sites of their work and murders; the Salvadoran non-judicial investigations of the crime; the Salvadoran judicial investigation and prosecution of this crime; the Salvadoran Truth Commission’s investigation of the crime; the unsuccessful U.S. civil lawsuit against the generals over the crime under the Torture Victims Protection Act; a 2014 New York Times retro-report of the crime; and the Immigration Judge’s finding, after trial, that Vides should be deported.

[3] A previous post discussed the civil liability of Salvadoran Generals Vides and Garcia for torture of these individuals under the U.S. Torture Victims Protection Act.

New Examination of the 1980 Rapes and Murders of the Four American Churchwomen in El Salvador

The November 10, 2014, edition of the New York Times published a video and textual “RetroReport”[1] by Clyde Haberman about the December 1980 rapes and murder in El Salvador of the four American Churchwomen: Maryknoll missionaries Maura Clarke, Ita Ford, Dorothy Kazel and Jean Donovan. The article contains disturbing videos of the exhumation of their bodies that month from shallow graves near the airport in that country along with other contemporaneous videos of the churchwomen and U.S. officials and news reports about this horrible crime.

This “RetroReport” was presented as background for the article’s discussion of the pending U.S. legal proceedings to remove or deport two retired Salvadoran generals for having been responsible for those horrible crimes: “José Guillermo García, now 81, and Carlos Eugenio Vides Casanova, 77, [who] have been living in Florida for a quarter-century. They were allowed to settle there during the presidency of George Bush, who, like his predecessor, Ronald Reagan, considered them allies and bulwarks against a Moscow-backed leftist insurgency.”

“But administrations change, and so do government attitudes. Over the past two and a half years, immigration judges in Florida have ruled that the generals bore responsibility for assassinations and massacres, and deserve now to be ‘removed’ — bureaucratese for deported. Both are appealing the decisions, so for now they are going nowhere. Given their ages, their cases may be, for all parties, a race against time.”

The Times pointed out that the proceedings against these two Salvadoran military officers rely on a 2004 U.S. federal statute “prohibiting human rights abusers from entering or living in this country and that [the U.S. government] has broadened its scope to include violators from all over. Immigration and Customs Enforcement, a branch of the Department of Homeland Security, reported last December that over the previous decade, it had obtained deportation orders for more than 640 people.”

This blog has published the following seven posts about the American Churchwomen:

The December 1980 Murders of the Four American Churchwomen in El Salvador (Dec. 14, 2011);
Non-Judicial Investigations of the 1980 Murders of the Four Churchwomen in El Salvador (Dec. 16, 2011);
Salvadoran Judicial Investigation and Criminal Prosecution for the 1980 Murders of the Four Churchwomen (Dec. 18, 2011);
The Salvadoran Truth Investigation of the 1908 Murders of the Four Churchwomen (Dec. 19, 2011);
TVPA Lawsuit in U.S. Federal Court over the 1908 Murders of the American Churchwomen (Dec. 20, 2011);
Pilgrimage to American Churchwomen Sites in El Salvador (Dec. 21, 2011); and
The Witness of a Lawyer for Salvadoran Soldier Accused of 1980 Murder of American Churchwomen (Aug. 15, 2013).

In addition, this blog has published the following four posts about the U.S. proceedings to remove or deport García and Vides Casanova:

Former Salvadoran Military Officer Is Determined To Have Assisted in Torture and Murder [Casanova immigration] (Feb. 24, 2012);
Enforcement of International Human Rights Norms with U.S. Immigration Laws [Casanova, Garcia and others] (April 14, 2013);
U.S. Orders Deportation of Former Salvadoran General [Garcia] (April 26, 2014) and
Developments in Use of U.S. Immigration Law To Enforce International Human Rights [Garcia, Casanova and others] (June 15, 2014).

Although Garcia and Casanova escaped civil liability for money damages over the murders of the churchwomen in U.S. federal court under the Torture Victims Protection Act, they were held liable for $54.6 million of money damages in another civil case in U.S. federal court involving other victims as discussed in a prior post.

Maura Clarke, Ita Ford, Dorothy Kazel and Jean Donovan continue to inspire many by their living out Jesus’ Gospel of loving God with all your heart, mind and soul and your neighbor as yourself.

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

[1] The Times article states that this RetroReport is part of a documentary series that looks back at major stories that shaped the world using fresh interviews, analysis and compelling archival video footage. This nonprofit project, which was started with a grant from Christopher Buck, has a staff of 13 journalists and 10 contributors.

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.

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

[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.

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

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

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

The Committee’s Concluding Observations[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

U.S. Court of Appeals Affirms Dismissal of Compliant against Former Mexican President

As previously noted, last year the U.S. District Court in New Haven, Connecticut dismissed a complaint against former Mexican President Ernesto Zedillo that had been brought under the U.S. Alien Tort Statute and the Torture Victims Protection Act based upon the alleged 1997 massacre in the Mexican village of Acteal.[1]

On appeal, the plaintiffs conceded that the district court properly had dismissed their complaint. Instead, the plaintiffs argued that the district court had erred in not permitting them to amend their complaint, for which the appellate court could reverse only if the district court had abused its discretion and if any amendment would not be futile.

The Second Circuit Court of Appeals held that any amendment would be futile since the U.S. Government had submitted a suggestion of immunity for Mr. Zedillo and since that suggestion is dispositive.

Therefore, the Second Circuit affirmed the dismissal in a short Summary Order on February 18^th. (Doe v. Zedillo, No. 13-3122 (2d Cir. Feb. 18, 2014).)

[1] Seven prior posts have discussed the Zedillo case in the district court.

Dismissal of U.S. Lawsuit Against Ex-President of Mexico

On July 18th the U.S. District Court for the District of Connecticut dismissed a private lawsuit under the U.S. Alien Tort Statute and Torture Victims Protection Act against Ernesto Zedillo, a former President of Mexico.[1]

The written dismissal order merely states that it was for the reasons stated at the oral argument that day. Those reasons, according to the attorney for Mr. Zedillo, centered on the court’s deferring to the U.S. Department of State’s conclusion that Mr. Zedillo was entitled to immunity as a former head of state of Mexico sued for alleged acts taken in his official capacity. This was confirmed in the transcript of the court’s ruling.

The State Department’s position, which was provided to the court in September 2012, was based upon “principles of immunity articulated by the Executive Branch in the exercise of its constitutional authority over foreign affairs and informed by customary international law, and considering the overall impact of this matter on the foreign policy of the [U.S.].” These principles of officials’ immunity included the following:

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

The court’s dismissal also relied upon the U.S.’ advising the court on May 15, 2013, that it did not intend to appear at the July 18th hearing and that it “rests on its [previous] Suggestion of Immunity.” The court saw this advice “as a reaffirmation of the State Department’s Suggestion of Immunity, but even if it were a Statement of Neutrality, as the Plaintiffs’ contend, the fact is that the State Department has not withdrawn its Suggestion of Immunity.”

The U.S. court also noted that on May 23rd an unanimous Mexican appellate court reversed a lower court’s ruling that the Mexican government’s request for Zedillo’s immunity was illegal under Mexican law.[2]

The Mexican appellate court held that the Mexican plaintiffs in the U.S. case were not injured bythat Mexican government’s request because it was a “communiqué between Sates, and is a suggestion or proposal of immunity that the neighboring country [the U.S.] may or may not accept.” The appellate court also denied a motion to have the Mexican Supreme Court of Justice review the case, thereby finally ending the Mexican case.

According to the U.S. court, “even if . . . [the lower Mexican court’s decision had been affirmed], I find that it would ultimately be irrelevant to this Court’s determination of whether the Defendant is immune from this lawsuit because the Plaintiffs have cited no authority, and I’m not aware of any authority, for the proposition that the impropriety of such a request by the Mexican government would be sufficient justification for a court to disregard our own State Department’s Suggestion of Immunity.”

The U.S. case should also be over. Any appeal by the plaintiffs, in my judgment, would be fruitless.

The U.S. case was brought by ten anonymous Mexicans alleging that Mr. Zedillo had been complicit in a a 1997 massacre in the Mexican village of Acteal in the southern state of Chiapas.

[1] Various aspects of this U.S. case have been discussed in prior posts.

[2] The decision of the lower Mexican court was discussed in posts on March 10 and March 26, 2013.

U.S. Supreme Court Severely Limits Application of the Alien Tort Statute

On April 17, 2013, the U.S. Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co. that severely limited the application of the Alien Tort Statute (ATS),[1] which provides that the 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.].”[2]

The Court unanimously decided that the ATS did not cover a lawsuit by Nigerian plaintiffs for money damages against corporations incorporated in the Netherlands, the U.K. and Nigeria for their alleged aiding and abetting the Nigerian military and police’s beating, raping, killing and arresting of Nigerians and destroying and looting their property, all in Nigeria.[3]

The Court, however, differed, 5 to 4, on the rationale for this conclusion.

The Majority’s Rationale

The opinion for the Court by Chief Justice John Roberts, expressing the majority’s rationale, held that the Court’s presumption against extraterritorial application of federal statutes applies to claims under the ATS and that nothing in the ATS rebutted that presumption. Therefore, said the Chief Justice, this “case seeking relief for violations of the law of nations occurring outside the [U.S.] . . . is barred.”[4]

This presumption, according to Roberts, was recognized in these precedents from the Court in 1957, 1991, 2007 and 2010, which were referenced by him as follows:

The 1957 case, Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957), was merely quoted in the 1991 case to say, “For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.”
The 1991 case, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991), said this presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” After the above quotation from the Benz case, the Court in the 1991 case continued, ” The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”
The 2007 case, Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007), said the “presumption [assumes] that [U.S.] . . . law governs domestically but does not rule the world.”
The 2010 case, Morrison v. National Australian Bank Ltd., 561 U.S. ___, ___ (2010), said this canon of statutory construction provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” This case, noted the Chief Justice, said “the question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction.”

In discussing whether and how this presumption applied to the ATS, the Chief Justice first disposed of the Morrison case’s limitation of the presumption to the merits whereas the ATS was only jurisdictional as established by the Supreme Court in Sosa v. Alverez-Machain, 542 U.S.692, 713 (2004). Said Roberts, “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”

Roberts then found nothing in the ATS itself that suggested a congressional intent that it have extraterritorial application. It refers to “violations of the law of nations,” but such violations can occur in the U.S. It says it covers “any” civil action, but the Court in decisions in 1949 and 2005 had established that generic terms like “any” or “every” do not rebut the presumption. It covers actions for “torts,” but that word does not evidence such an intent.

Nor, according to Roberts, did the historical context of the 1789 adoption of the ATS overcome the presumption. At the time, as Sosa noted, two of the three recognized violations of the law of nations at the time–violation of safe conducts and infringement of the rights of ambassadors–had no extraterritorial application.

The other recognized violation in 1789–piracy–was not as easy for the Chief Justice to get around. He said, “Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the [U.S.] . . . or any other country.” Although the Court “has generally treated the high seas the same as foreign soil for purposes of the presumption,” Roberts refused to regard that as evidence of congressional intent for extraterritorial application. Said Roberts, “Applying U.S. law to pirates . . . does not typically impose the sovereign will of the [U.S.] . . . onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.”

Finally, according to Roberts, “there is no indication that the ATS was passed to make the [U.S.] . . . a uniquely hospitable forum for the enforcement of international norms . . . It is implausible to suppose that the First Congress wanted their fledgling Republic–struggling to receive international recognition–to be the first [custos morum or guardian of manners or morals of the whole world]. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.”

Applying these principles to the Kiobel case itself, Roberts said “all the relevant conduct took place outside the . . . [U.S.]. And even where the claims touch and concern the territory of the . . . [U.S.], they must do so with sufficient force to displace the presumption against extraterritorial application.” A “mere corporate presence” in the U.S. such as an office of a corporate affiliate of the corporate defendants in this case had would not suffice.

The Minority’s Rationale

The minority’s rationale was set forth in the concurring opinion of Justice Breyer, which was joined by Justices Ginsburg, Sotomayor and Kagan.

Breyer first rejected use of the presumption against extraterritoriality because the ATS’ use of “alien,” “treaties” and “the law of nations” clearly demonstrate that Congress had foreign matters in mind.

Moreover, piracy was clearly contemplated as covered by the statute in 1789 and takes place abroad. The Chief Justice’s treatment of piracy, however, Breyer implied, is erroneous. Says Breyer, “the robbery and murder that make up piracy do not normally take place on the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies.” Thus, ‘applying U.S. law to pirates’ does typically involve applying our law to acts taking place within the jurisdiction of another sovereign.”

On the other hand, Breyer agreed with Roberts that pirates “were fair game wherever found, by any nation,” but not, as Roberts said, because they did not operate within any jurisdiction, but because pirates were “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.” Today, according to Breyer, torturers and perpetrators of genocide are today’s pirates.

Breyer then said that international jurisdictional principles justified the conclusion that ATS jurisdiction exists where “(1) the alleged tort occurs on American soil, [or] (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” One such national interest, according to Breyer, is “preventing the [U.S.] from become a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

With respect to Kiobel itself, Breyer noted that the corporate defendants were foreign corporations who were present in the U.S. only through a small office of a corporate affiliate, that the plaintiffs are not U.S. nationals, that the conduct at issue took place abroad and that the alleged illegal corporate conduct was not direct, but accessory. It, therefore, “would be farfetched to believe . . . that this legal action helps to vindicate a distinct American interest.”

Conclusion

The majority’s rationale essentially obliterates the 34 years of ATS jurisprudence carefully developed by the lower federal courts. It should lead to the immediate dismissal of many pending ATS cases.[5]

I disagree with the result in this case and with the majority’s rationale because I believe that the ATS has been an important way of expanding the reach of international human rights norms and because the Congress in these 34 years has not chosen to amend the ATS to negate this jurisprudential development. Indeed, when Congress in 1991 adopted the Torture Victims Protection Act, it recognized and approved this ATS jurisprudence.

Moreover, the Supreme Court’s creation and elaboration of the presumption against extraterritorial application, I believe, is a development of the last 60 years and was not clearly known to the Congress when it initially adopted the ATS in 1789. It, therefore, seems unfair and inappropriate to employ this interpretative presumption to construe the ATS. In more recent years, on the other hand, the Congress should be aware of this presumption in drafting statutes.

I also continue to be baffled by everyone’s failure to include in the analysis of the congressional intent behind the ATS the fact that Congress in 1948 re-enacted the ATS as part of the Judicial Code (title 28 of the U.S. Code). That year–1948– was a very important year in the development of the law of nations regarding human rights. The U.N. Charter–a treaty ratified by the U.S.–was three years old, and one of its purposes was “promoting and encouraging respect for human rights” (Article 1(3)) while its Economic and Social Council was directed to set up a commission “for the promotion of human rights” (Article 68). Such a commission was established, and in 1948 its Universal Declaration of Human Rights and its Convention on the Prevention and Punishment of the Crime of Genocide were approved by the U.N. General Assembly. Such an appreciation should broaden the types of “torts in violation of the law of nations” beyond the three discussed by the Chief Justice.

Justice Breyer’s legitimate concern for the U.S. interest in not being a safe haven for the common enemies of mankind, as discussed in a prior post, has been recognized by the Congress in several statutes–the Intelligence Reform and Terrorism Prevention act of 2004 and the Magnitsky Act of 2012–and by the legal proceedings to remove or deport such common enemies of mankind from the U.S. by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency and by the criminal prosecution of other such individuals for immigration fraud and perjury.

Finally, we must remember that this is a case of statutory interpretation, and Congress could always amend the ATS or adopt a new statute to overrule this decision. In a future post, I will set forth a draft outline of such a new statute even though I am not hopeful that this dysfunctional U.S. Congress will be prepared to take such action in the near future.

[1] The New York Times and the Washington Post obviously covered this decision. The Times editorial board criticized the decision while the Wall Street Journal reached the opposite conclusion.

[2] Many prior posts have discussed the ATS. Some of these focused on the Kiobel case itself.

[3] The Court did not address another issue presented by this case–whether corporations could be held liable under the ATS.

[4] The Chief Justice’s opinion was joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Kennedy also authored a short concurring opinion, which stated, “Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the [Torture Victims Protection Act] . . . nor by the reasoning and holding of today’s case; and in these disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Another concurring opinion was submitted by Justice Alito joined by Justice Thomas; it said, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality–and will therefore be barred–unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations.”

[5] For example, the Supreme Court’s decision should lead to the dismissal of the ATS claims against Ernesto Zedillo, the former President of Mexico, but the claims against him under the Torture Victims Protection Act should survive for the court’s ruling on the immunity issue.

Former Mexican President Tells U.S. Court To Ignore Mexican Court Decision

This blog has been following the civil lawsuit for money damages in U.S. federal court against Ernesto Zedillo, the former President of Mexico, for his alleged involvement in a 1977 massacre in a Mexican village and his claim for immunity from same.

That request for immunity has prompted another lawsuit, this in a Mexican court, over the legality of the request under Mexican law. In early March 2013 the Mexican court decided that the request for such immunity by the Mexican Ambassador to the U.S. State Department was illegal, and on March 28th that Mexican court decision was filed with the U.S. court.

The latest move in this duel between the two court systems took place on April 12th when Mr. Zedillo told the U.S. court that it should just ignore the Mexican court.

That was the bottom line in the Defendant’s Response to Plaintiffs’ Notice Regarding Mexican Trial Court Decision that was filed that day in the U.S. District Court for the District of Connecticut.

Although Mr. Zedillo in this document noted that his pending appeal of the Mexican court decision had been joined by the current Mexican President and Secretary of Foreign Affairs, that decision is asserted to be “irrelevant” to the U.S. case, and the U.S. court should “promptly and finally” dismiss the U.S. case. This conclusion purportedly follows from these premises:

The U.S. Department of State decides whether immunity for a foreign official advances U.S. interests and U.S. law.
The U.S. Department of State does not judge whether a foreign nation’s request for immunity for one of its former officials is in accordance with that country’s laws.
The U.S. Department of State already has decided that immunity in the U.S. case for Mr. Zedillo is in accordance with U.S. law and foreign policy and so advised the U.S. court.
Under U.S. law, U.S. courts are required to honor the U.S. Department of State’s decisions on immunity of former foreign officials.

Although I do not quarrel with these premises, I do not think that they support the conclusion put forward by Mr. Zedillo.

If the Mexican trial court decision is sustained on appeal in Mexico, then that should result in the Mexican government’s rescission of the earlier request for immunity by its Ambassador. That hypothetical situation, to me, looks like the case where the State Department recently refused to support immunity in a U.S. case for a former Somali official because there was no Somali government that could ask the Department for such immunity.

In any event, if I were the U.S. judge in the Zedillo case, I would postpone making any decision on immunity for Mr. Zedillo until after the Mexican case was concluded and the U.S. State Department had expressed its views on the impact of the Mexican case. Perhaps I would now ask the State Department for its views before the Mexican case had concluded, but I anticipate the Department would say it was waiting for a final judgment in the Mexican case before it expressed its views.

This blog will continue to watch for further developments in these cases.

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.