Objections to Proposed U.S. Rule Changing Asylum Procedures

The U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) has proposed a rule that would significantly shorten the time for asylum seekers to file their paperwork for asylum and to amend that paperwork.[1] Given my experience as a pro bono attorney for such individuals, I filed with the EOIR a comment objecting to that proposed rule. Here is that comment followed by another objection by a Minnesota lawyer and friend, Steven Thal.

My Objection to the Proposed Rule[2]

“I am writing to oppose EOIR’s proposed rule to curtail human rights of asylum seekers by limiting timelines for applications and unlawfully restricting the type of evidence presented. The rule represents yet another attempt to restrict the right of people to obtain protection from persecution and torture—rights that the U.S. has agreed to meaningfully implement. By putting up nearly-insurmountable obstacles in that process, this proposed rule violates the rights of asylum seekers and, therefore, U.S. and international law. For the following reasons, I request that this rule be withdrawn in its entirety.”

I.“The 15-day filing deadline for asylum- and withholding-only removal proceedings will contravene our international and domestic laws.”

”The proposed rule will violate our obligations under the UN Refugee Convention and U.S. law by impinging on the ability for people in asylum- and withholding-only proceedings to adequately prepare their case. The rule proposes to require filing within 15 days of the person’s first hearing. For most in asylum- and withholding-only proceedings, this will be an impossible task as many are recently-arrived in the U.S., lack sufficient language skills to prepare a filing that must be in English, lack the resources to pay the now-required $50 fee, and are unlikely to secure reliable counsel on that timeline. Asylum seekers are entitled to present their case and be represented by counsel. This new rule infringes on those rights and must be withdrawn. Moreover, the rule will unduly impact attorneys and service providers—particularly nonprofit providers—who will be overburdened and unable to find pro bono counsel willing to complete applications on such a timeline”

II.“The proposed restrictions on evidence are a blatant attempt to deny asylum protections and improperly restrict due process.”

“The proposed changes to evidence are unlawful and blatantly targeted to discourage asylum applications. This violates our obligations under the UN Refugee Convention as well as U.S. law.”

“The proposed rule proposes to make all evidence other than U.S. government reports presumptively unreliable. Such change would allow immigration judges to discount local and international news sources, reports by both local and international nongovernmental organizations and even United Nations reports. The only evidence under the new rule that would be presumed credible would be reports prepared by the U.S. Government, i.e., opposing counsel in an asylum case.”

“This rule is unjustified and must be withdrawn as local and international sources provide nuanced and expert analysis that the U.S Government reports often lack due to capacity, know-how and diplomatic pressures. Moreover, because U.S. Government reports will be prepared by the same branch as the opposing counsel in asylum cases, the rule violates basic understandings of due process rights by presumptively finding one side credible. And, the rule allows immigration judges to introduce their own evidence into the record, further violating due process by eliminating their role as a neutral arbiter.”

III. “The proposed 30-day timeframe for correcting errors will deny asylum to those who need protection, thereby contravening international and domestic law on nonrefoulment.”

“The proposed rule further violates asylum seekers’ rights by restricting their ability to file an application. The proposed rule, though espousing efficient processing of applications, removes the requirement that EOIR return an application within 30 days of filing or presume it properly filed. Yet, it then gives the asylum seeker only 30 days to correct any deficiencies and will deem abandoned and deny any application not corrected in that time. This rule is a clear attempt to allow the Government to deny bona fide asylum claims under the guise of procedural efficiencies. Moreover, it will violate our international nonrefoulment obligations by denying asylum applications due to procedural defects rather than substance and, therefore, returning people to countries in which they will be persecuted or tortured.”

IV. “The proposed 180-day case completion timeline and restrictions on continuances improperly penalizes asylum applicants for the court’s inefficiencies.”

 “The proposed rule passes-on to the applicant the inefficiencies and failure of EOIR to provide sufficient resources—while eliminating case management techniques such as administrative closure—by requiring applications be adjudicated within 180 days absent a very limited set of exceptional circumstances. The rule will mean in practice that bona fide asylum applicants are denied and removed to countries in which they will face persecution or torture because they will be foreclosed from requesting continuances to sufficiently prepare their case. By essentially barring continuances and demanding immigration judges adjudicate cases on impossible timelines given backlog and complexity of asylum cases—as well as the myriad new restrictions and processing requirements created over the past four years— the proposed rule will result in improperly decided cases, increasing the rate of appeals and threatening to deny those who truly need our protection. Such a timeline will also present immense challenges to attorneys and pro bono service providers who will be challenged to represent clients to the best of their abilities without the ability to request time to prepare. This infringes on the due process rights of asylum clients and should be withdrawn.”

V. “My Personal Experience As a Pro Bono Asylum Lawyer Demonstrates the Utter Insanity of this Proposed Regulation.”

“In the mid-1980s I was a partner in a major Minneapolis law firm with 20 years of experience representing fee-paying clients in business litigation. I had not studied immigration law in law school or thereafter and had no knowledge of that field in general or refugee and asylum law in particular. But for various professional and personal reasons, I decided that I wanted to be a pro bono lawyer for an asylum seeker from Central America.”

“Fortunately for me and many other Minnesota lawyers, then and now, a Minnesota non-profit organization—[Minnesota] Advocates for Human Rights—provided a course in refugee and asylum law for lawyers like me and the support of experienced immigration lawyers that enabled me and others, then and now, to become pro bono asylum lawyers.”

“With that support from this system and my law firm, I thus embarked in the mid-1980’s on my first pro bono case for a Salvadoran asylum seeker and tried the case in the Immigration Court with the assistance of an experienced immigration attorney. We lost the case, but filed an appeal to the Board of Immigration Appeals, and under the laws at that time our client maintained his work permit and continued to live and work in the Twin Cities.”

“Thereafter with the assistance of [Minnesota] Advocates for Human Rights I was a pro bono attorney for another Salvadoran asylum seeker, whose case prompted me in April 1989 to go to that country, at my own expense, to do some investigations in his case and learn more about that country more generally. This trip was during the Salvadoran Civil War and on the day that I arrived her attorney general was assassinated with a car bomb. That subsequent week, therefore, was tense and dangerous, but to my surprise turned out to be the most important religious experience of my life as I started to learn about the courageous work of Archbishop (now Saint) Oscar Romero, the Jesuit priests at the University of Central America (six of whom were murdered by the Salvadoran military later that same year), Bishop Menardo Gomez of the Lutheran Church of El Salvador and many others. Afterwards my second Salvadoran client was granted protection by the Immigration and Naturalization Service.”

“In the 1990s I was a successful pro bono lawyer for an Afghan’s affirmative application for asylum and later for U.S. citizenship. Thereafter until my retirement in 2001 I also had success as a pro bono attorney for asylum seekers from Colombia, Somalia and Burma. All of this was made possible by the assistance of Advocates for Human Rights and experienced immigration lawyers and by the support of my law firm.”

“As a result of this experience, I can testify that asylum seekers in the U.S. desperately need the assistance and guidance of able pro bono attorneys since almost all such individuals do not have the financial resources to retain fee-based attorneys.”

“Moreover, I can testify to the time constraints associated with such pro bono representation.”

“First, organizations like Advocates have procedures to screen potential asylum applicants and identify those who appear to have credible claims and then seek to find an a competent attorney who is willing to represent, pro bono, such applicants. These organizations also have to develop and produce at least annual programs to educate potential pro bono attorneys about refugee and asylum law and develop other ways to recruit such lawyers to volunteer their services to asylum seekers. That takes time and effort and financial support by charitable contributions from the community. Advocates for Human Rights continues to be successful in these efforts.”

“Second, once an attorney agrees to take such a case, pro bono, he or she needs to fit that case into his or her caseload and obligations to existing clients, especially fee-paying clients. Once the attorney starts working on the pro bono asylum case, he or she may identify documents that need to be obtained from another place in the U.S. or foreign country and/or need to be translated from a foreign language into English. An interpreter may be needed for conferences with the client or other witnesses. Eventually the attorney must prepare documents for the asylum application and appear with the client in Immigration Court or at interviews on affirmative claims. In addition, the case may require the attorney to travel to another location. All of these actions by an attorney are necessary to provide competent advice and service to the pro bono client and all have their time requirements.”

“Third, these time pressures on the relevant non-profit organizations and pro bono asylum attorneys are even more intense now in the midst of the COVID-19 Pandemic disruptions and complications.”

“In short, it would be impossible under the proposed regulation for asylum seekers to obtain the competent pro bono representation they so desperately need. The proposed regulation is utter insanity.”

Steven Thal’s Objection to the Proposed Rule[3]

“I have been practicing immigration law since 1982 in Minneapolis, Minnesota. I also am a past Chair of the Immigration Section of the Minnesota State Bar Association. I have served as a past Chair of the Minnesota/Dakotas American Immigration Lawyers Association (AILA) Chapter and previously served as its Vice Chair and Secretary/Treasurer. I have served on the AILA Essential Workers Committee, AILA Immigration Works Committee. The law firm I established currently has three full-time associate attorneys involved in our practice. (www.thalvisa.com.)”

“First, I endorse the comments on this proposed rule made by my friend and fellow Minnesota attorney, Duane W. Krohnke (Comment Tracking Number: kgl-2g3o-0vel.) “

“Second, although my two associates and I along with other full-time Minnesota immigration attorneys represent some asylum seekers on a pro bono basis, the demand for such services exceeds our collective ability to do so. Therefore, we need the assistance of non-immigration attorneys to be pro bono lawyers for other asylum seekers after these lawyers have obained education about asylum law from Advocates for Human Rights. In short, the only way that asylum applicants in the Twin Cities and Minnesota can obtain a pro bono attorney is through organizations like Advocates.”

“Third, I would add that it would be nearly impossible to meet the proposed deadlines in this proposed rule given the difficulty in reaching clients who are in detention in remotely held jail facilities, especially since ICE can move these individuals without prior notification. Just getting a G-28 Notice of Appearance of Attorney signed is a logistical nightmare. Gathering evidence, locating witnesses, obtaining supporting evidence cannot be accomplished effectively within the short times in the proposed rule.”

Conclusion

For the foregoing reasons, we call on the Department to withdraw the proposed rule in its entirety.

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[1] Executive Office for Immigration Review (EOIR), Procedures for Asylum and Withholding of Removal (Sept. 23, 2020).

[2] Comment on FR Doc # 2020-2107, EOIR Procedures for Asylum and Withholding of Removal (by Duane Krohnke) (Oct. 22, 2020), Comment ID: EOIR-2020-0005-1113;Tracking Number kgl-2g3o-Ovel.

[3] Comment on FR Doc # 2020-2107, EOIR Procedures for Asylum and Withholding of Removal (by Steven Thal) (Oct. 22, 2020) Comment ID: EOIR-2020-0005-????; Tracking Number: 1K4-0jny-mh2v.

 

One of Saint Oscar Romero’s Final Conversations

Carolyn Forché, an American poet and author, [1] then 27-29 years old, lived in El Salvador, January 1978—March 1980. Her memoir recounts her amazing sojourn in this country, which then was on the precipice of a brutal civil war.[2]

As an admirer of Monseñor (now Saint) Oscar Romero, I was especially interested in her accounts of seeing him on four occasions and conversing with him on the last of these.[3]

Mass in the Cathedral

Forché first saw Romero while he was celebrating mass in the then unfinished Cathedral of San Salvador, the capital of the country. He was “in his white vestments before a spray of microphones, giving a homily with a litany of names of those disappeared or found dead that week, some of whom were in coffins lined up at the altar, with windows cut into the lids to reveal their faces, except the mutilated. “ (Pp. 193-94)

“In shafts of sunlit dust sent from the louvers of the two bell towers we stood shoulder to shoulder; women in scarves or mantillas, men holding their straw hats, children sitting along the altar rail as the homily was broadcast to thousands of radios throughout the country, to machine shops, bodegas, to pickup trucks, and the battery-operated radios in the villages. When his homily giving guidance and counsel came to an end, Monseñor walked toward the coffins with an aspergillum [liturgical implement], sprinkling holy water on the dead, and then he walked through the congregation, and we parted to make a path for him, the water sprinkling down on our bowed heads, as it had on the coffins.” (Pp. 193-94.)

Upon later reflection, “I would understand that here the dead and the living were together, and those who stood alive before him, he was blessing in advance.” (P. 194.)

Lunch at the Carmelite Convent

On another occasion Forché went for lunch with the Carmelite sisters at their convent where they operated the Hospital of Divine Providence for cancer patients. Monseñor Romero, who lived in a small casita on the hospital grounds, came late for lunch. Apologizing for his lateness, he said, “there were so many meetings this morning, so many problems to address, that he lost track of time.” Forché heard someone mentioning her name, and Monseñor nodded his head yes, glancing at me.” (Pp. 213-15.)

But the two of them did not have any conversation on this occasion although she later recalled hearing his voice from the convent kitchen, saying,“ We must hope without hoping. We must hope when we have no hope.”(P. 336.)

It should also be mentioned that the hospital’s small, modern chapel is where Romero was assassinated while celebrating mass on March 24, 1980. (P. 332.)

Another Mass at the Cathedral

Presumably in early 1980, Forché attended another mass at the Cathedral,  “hoping once again to receive Communion from Monseñor, to feel the raindrops from his aspergillum land on me. . . . I took photographs of him at the altar, speaking into what appeared to be a telephone held by an altar boy . . . .[To] the left of the altar is Father Ignacio Ellacuria, arms folded, not wearing his glasses, his eyes appearing to focus on Monsignor’s raised hand.” [4] (Pp. 311-13.)

After mass that day, Forché “noticed a man wearing sunglasses, who was, inexplicably, carrying an attaché case . . . He paused near one of the side altars as if offering a special prayer. The following day, a priest found an attaché case carrying seventy-two sticks of dynamite behind that side altar. It had been set to detonate during a funeral Mass for a civilian member of the junta, scheduled for that afternoon, but the detonator had apparently failed.” (P. 312.)

Conversation with Romero

On March 14, 1980, Forché and a Venezuelan journalist met with Romero in a community room at the Hospital of Divine Providence. Responding to questions from the journalist, Romero said finding a solution to the conflict had not been exhausted. “For if that were true, we would already be in the midst of a full civil war.” (P. 327.)

Another question prompted Romero to say, “My relation with the [guerrilla] organizations is one of a shepherd, a pastor with his people, knowing that a people has the right to organize itself and to defend its right of organization. And I also feel perfectly free to denounce those organizations when they abuse the power and turn in the direction of unnecessary violence. This is my role as pastor: to animate the just and the good and to denounce that which is not good.” (Pp. 327-28.)

Romero continued, “As I have told you, I do not have a political role in El Salvador, but rather a pastoral one. As a pastor, it is my duty to construct this Church, my community, the church. That is what I am responsible for. And this Church, as a people, illuminated by God, has a mission too among the people in general.” (P. 328.)

The journalist then asked about Monseñor’s own safety. The response, “ I have a great confidence in the protection of God. . . One does not need to feel fearful. We hear from Jesus Christ that one should not tempt God, but my pastoral duty obliges me to go out and be with the people, and I would not be a good pastor if I was hiding myself and giving testimonies of fear. I believe if death encounters us in the path of our duty, that then is the moment in which we die in the way that God wills.” (P. 328.)

After the journalist left. Forché and her friend Leonel, who also was there, discussed with Romero a meeting she had had with a Salvadoran official who was going to defect. Romero then told Leonel that “It is for the best” that Forché leave the next day (March 15), and Leonel agreed. (Pp. 328-29.)

Forché, however, did not want to leave and said to Romero, “But Monseñor, forgive me but it is so much more dangerous for you.” He replied, “My child, my place is with my people, and now your place is with yours.”  Romero added that he wanted her to “speak about the sufferings of the poor, the repression, and the injustice,. . .[to] say what I had seen.” He “assured me that the time would come for me to speak, and that I must prepare myself and I could do that best through prayer.” (P. 329.)

Forché left El Salvador the next day (March 15), and Romero was assassinated on March 24. (P. 332.)

Conclusion

On April 26, 2019, before I had read her book, I heard Forché speak about it at a “Literary Witnesses” meeting at Minneapolis’ Plymouth Congregational Church.

I asked her whether she had any comments on the impact on Romero of the March 12, 1977, murder of his friend and fellow priest, Rutilio Grande, and the opinion, often expressed, that this death converted or transformed Romero to be more outspoken against the human rights abuses of the Salvadoran government. (Pp. 28-29.)

In response, Forché said that Grande was murdered just before she arrived in the country, but based upon what she heard about Romero and her conversation with Romero, noted above, she disputed any contention that Romero was converted or transformed by that murder. He always expressed solidarity with the people and spoke out against repression.

For anyone interested in El Salvador, this well-written book is highly recommended.

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[1] Carolyn Forché , Poetry Fnd; Carolyn Forché, Wikipedia.

[2] Forché, What You Have Heard Is True: A Memoir of Witness and Resistance (Penguin Press;  New York; 2019); Goldman, A Young Poet, a Mysterious Stranger and an El Salvador on the Brink of War, N.Y. Times Book Review (April 20, 2019); Meyer, How to Write Poetry About Conflict. The Atlantic (Mar. 25, 2019).

[3] This blog has published many posts about Romero, his life and death, his continuing inspiration for many people throughout the world, including this blogger as well as various legal proceedings regarding his assassination. See the posts listed in the “Oscar Romero” section of List of Posts to dwk commentaries—Topical: EL SALVADOR.

[4] Father Ellacuria at the time was Professor and Rector of the Jesuit University of Central America (UCA) as well as a Jesuit priest, philosopher and theologian On November 16, 1989, he was was one of the six Jesuit priests who were murdered near their apartments at UCA. This blog has published many posts about these priests, their brutal murders and various legal proceedings regarding that horrible crime. See the posts listed in ”The Jesuit Priests” section of List of Posts to dwk commentaries—Topical: EL SALVADOR.

 

Salvadoran Attorney General Requests Reopening of Jesuit Priests Murder Case

On December 5 El Salvador’s Attorney General advised a Salvadoran court that the case over the 1989 murder of the Jesuit priests should be reopened. This follows a similar request on November 27 by the Institute for Human Rights of the University of Central America (UCA), where the priests lived and worked.[1]

The defendants in the case are the alleged intellectual authors of the crime: former president, Alfredo Cristiani; the former head of the Joint Chiefs of Staff, René Emilio Ponce (now deceased); ex-commander of the Air Force, Juan Rafael Bustillo; Deputy Defense Minister, Juan Orlando Zepeda; Public Security Vice Minister, Inocente Orlando Montano; the former commander of the First Infantry Brigade, Francisco Elena Fuentes; and the former Minister of Defense, Rafael Humberto Larios.

Another former Salvadoran military officer and intellectual author of the crime, Guillermo Alfredo Benavides, earlier was convicted of the crime in El Salvador and now is imprisoned in that country.

Montano, as reported in previous posts,[2] is now in Spain facing the same charges in a Spanish court. Apparently he is asserting the following defenses: (a) he had no knowledge of the orders to kill the priests, (b) he was not part of the military chain of command; and (c) at the time of the assassination of the Jesuits, former President Cristiani was present in the Joint Staff of the Armed Forces. At least one of these defenses is supported by an attorney for the Salvadoran military, who is asserting that Montano had no command over military personnel since as deputy minister he only could give  orders to members of the military corps security.[3]

In response, the prosecution in Spain is arguing that Montano was present at the Salvadoran Military General Staff meetings when the orders were given to commit the murders and that as Deputy Minister of Defense and Public Security he was empowered to command the security forces (National Police, National Guard and Treasury Police) while as a Colonel he had command over the military units.

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[1] Labrador, Prosecutor requests the reopening of the Jesuits case in El Salvador, El Faro (Dec, 7, 2017)

[2] See posts in “The Jesuit Priests” section of List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[3] Burgos, Montano’s defense sins innocent, El Faro (Dec. 5, 2017).

El Salvador’s Supreme Court Invalidates Salvadoran Amnesty Law

On July 13, the Constitutional Chamber of the Supreme Court of El Salvador decided, 4 to 1, that the country’s amnesty law of 1993 was unconstitutional. This post will examine that decision and a subsequent post will discuss the impact of that decision on the pending criminal case in Spain regarding the 1989 murders of the Jesuit priests in El Salvador.

 The Court’s Decision.[1]

The Chamber held that the country’s amnesty law of 1993 was unconstitutional because it was “contrary to the access to justice” and the “protection of fundamental rights” as impeding the state from fulfilling its obligation to investigate, try and punish grave violations of those rights. Indeed, the court said the government has an obligation to “investigate, identify and sanction the material and intellectual authors of human rights crimes and grave war crimes” in its civil war and to provide reparations to victims.[2] The court also suggested that prosecutors begin with about 30 cases highlighted by a U.N. Truth Commission in March 1993.[3] The cases include massacres, assassinations and kidnappings by combatants from both the armed forces and the guerrilla army called the Farabundo Martí National Liberation Front (FMLN). One of the most prominent was the 1989 murders of the Jesuit priests and their housekeeper and her daughter.

The court’s announcement of its decision stated that the 1992 Peace Accords ending the civil war had contained no provision for an amnesty; that the country’s National Assembly had no power to grant an amnesty to persons who had committed crimes against humanity or war crimes constituting grave violations of human rights and that its constitution and international law of human rights required the conclusion of invalidity.

The court also stated that the crimes against humanity during the civil war were not individual and isolated acts, but the result of guidelines and orders issued by organized apparatuses of power with hierarchies of command.  This implies criminal responsibility of the direct actors, those who gave the orders for the crimes and those commanders who failed to countermand the orders and thereby failed to exercise control over the hierarchies.

Much to the surprise of this blogger as a retired U.S. attorney, one of the Chamber’s four judges in this very case, Florentine Menendez, made a public statement about the decision. He said, “We’re not raising hatred or reopening wounds,” but rather emphasizing “the strength of the constitution and the right to life and justice” for the victims. The decision rescues “the jurisprudence of the Inter-American system of human rights protection to heal the wounds of the past and finally close the page and get a national reconciliation.”

Positive Reactions to the Decision.[4]

The next day the decision was celebrated at a ceremony in San Salvador’s Cuscatlan Park, the site of a 275-foot granite wall etched with the names of 30,000 civilians killed in the country’s civil war and the locations of nearly 200 massacres committed between 1970 and 1991. Below are photographs of David Morales,El Salvador’s human rights ombudsman, who made remarks that day, and of part of the granite wall.

David Morales
David Morales
Cucatlan Park
Cucatlan Park

 

 

 

 

 

 

At this celebration, David Morales said, “If prosecutors and judges are willing to comply with the ruling, it will generate for the first time in El Salvador the first glimmers of reconciliation.” He added that many Latin American countries have already abolished their amnesty laws and begun to prosecute crimes dating to the civil wars and military dictatorships of the late 20th century.

Benjamin Cuellar, former director of the human rights institute at the University of Central America (UCA) and one of the petitioners in the lawsuit, said, “This is the first step that will take El Salvador to true reconciliation; so that the institutions work and bring to justice those who commit crimes, regardless of who they are.”

UCA, the home of the murdered Jesuit priests, stated, “The majority of the victims are more noble than the victimizers.   They do not want vengeance, they want the injustice to be recognized.   And the State is obliged to honor them.  It is time to put the victims in the center.   The new phase that is opened for the country is positive, it means an advance for democracy and justice, and constitutes a late but just recognition for those who had been disrespected in their memory and in their pain.”

The Center for Justice and Accountability, which has been involved in various Salvadoran human rights cases, including the Spanish case regarding the murder of the Jesuit priests, said, “Today’s decision marks a moment many of us have hoped for, for a long time, as we struggled by the victims’ side. The victims have been demanding justice since the peace was signed and the brave truth commission report was published. The amnesty law passed only seven days after was a betrayal to the victims’ hopes and the whole peace process. With it, justice was excluded forever. Today’s decision brings back hope for investigation and prosecution both inside and outside the country.”

A group of independent United Nations human rights experts declared: “This historic decision for the country brings hope to victims and confidence in the legal system…. More than twenty years after the end of the conflict, this decision will restore the fundamental rights of victims to justice and full reparations.”

Amnesty International praised the decision: “Today is an historic day for human rights in El Salvador. By turning its back on a law that has done nothing but let criminals get away with serious human rights violations for decades, the country is finally dealing with its tragic past.”

Another voice of support for the decision came in a New York Times editorial calling it “ a remarkable ruling that opens the door for relatives of victims of war crimes to hold torturers and killers accountable.” “However,” the editorial continued, “there appears to be little political will in El Salvador to revisit a painful chapter of its history in courtrooms. Politicians across the political spectrum have questioned the viability of war crimes tribunals at a time when the country’s judicial institutions are overwhelmed by endemic gang violence.”  Nevertheless, the Times suggested that El Salvador should create “a prosecution unit and gives it the tools and independence to pursue the most emblematic cases of the conflict” like the El Mozote Massacre,” which has been discussed in prior posts.

Negative Reactions to the Decision.

The lack of political will referenced in the Times editorial can be seen in the country’s President, Salvador Sánchez Cerén, a member of the FLMN, asserted that his government had always been committed to the restoration of the victims of the war and to building a culture committed to human rights.   However, he said the court’s decision did not meet “the real problems of the country and far from solving the daily problems of Salvadorans, worsens them.  Judgments of the Constitutional Chamber ignore or fail to measure the effects on our living together in society, and do not contribute to strengthening institutionality.”

Another FLMN leader had a similar reaction. The former president of the National Assembly, Siegfried Reyes, said the decision was “surprising and seeks to weaken and hit the governance and hit the security plans that the government is implementing effectively.”

The country’s Minister of Defense, David Munguia Payés, asserted that the decision was a “political error” and would be a setback to the process of pacification which had occurred since the end of the civil war.”  He openly worried that the ruling would turn into a “witch hunt.”

Mauricio Ernesto Vargas, a retired general who represented the armed forces in the peace negotiations, said the court’s ruling could intensify political polarization in a country with no shortage of problems: a gang-violence epidemic, a migration crisis, crop failures and economic stagnation.

 The country’s Attorney General, Douglas Melendez, had a more nuanced view. He said, “We respect from the institutional point of view this ruling. We will do what we have to do, we will fulfill our constitutional responsibilities.”

The conservative political party ARENA (founded by a leader of the death squads in the 1970s and 1980s, and in control of the government when atrocities like the massacre of the Jesuits occurred and the authors of the amnesty law) published an official statement urging respect for the court’s decisions, but also noting that the decisions would present challenges for the process of reconciliation and the strengthening of democracy and institutions.

Now we will have to see whether this decision leads to any Salvadoran investigations and prosecutions for the serious human rights crimes of its civil war and to a resumption of Spain’s criminal case regarding the 1989 murders of the Jesuit priests. (The latter subject will be covered in a subsequent post.)

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[1] El Salvador Supreme Court (Constitutional Chamber), Press Release (July 13, 2016), http://static.ow.ly/docs/20.%20Comunicado%2013-VII-2016%20Ley%20de%20amnist%C3%ADa_50Yr.pdf; Post war 1993 amnesty law declared unconstitutional, Tim’s El Salvador Blog (July 13, 2016), http://luterano.blogspot.com/2016/07/post-war-1993-amnesty-law-declared.html; Malkin & Palumbo, Salvadoran Court Overturns Wartime Amnesty, Paving Way for Prosecutions, N.Y. Times (July 14, 2016); Maslin, El Salvador strikes down amnesty for crimes during its civil war, Wash. Post (July 14, 2016), https://www.washingtonpost.com/world/the_americas/el-salvador-strikes-down-amnesty-for-crimes-during-its-civil-war/2016/07/14/5eeef2ec-49bf-11e6-8dac-0c6e4accc5b1_story.html.

[2] Prior posts have discussed the Amnesty Law: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case, dwkcommentaries.com (June 11, 2011),  https://dwkcommentaries.com/2011/06/11/international-criminal-justice-el-salvadors-general-amnesty-law-and-its-impact-on-the-jesuits-caseEl Salvador’s Current Controversy Over Its General Amnesty Law and Supreme Court, dwkcommentaries.com (June 16, 2011), https://dwkcommentaries.com/2011/06/16/el-salvadors-current-controversy-over-its-general-amnesty-law-and-supreme-court; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case. It should be noted, however, that U.S. federal courts have held that the General Amnesty Law is limited to Salvadoran judicial proceedings and thus does not bar U.S. civil lawsuits for money damages against Salvadoran defendants. (El Salvador’s General Amnesty Law in U.S. Federal Courts, dwkcommentaries.com (June 14, 2011), https://dwkcommentaries.com/2011/06/14/el-salvadors-general-amnesty-law-in-u-s-federal-court-cases.

[3] Prior posts have discussed the Truth Commission: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador, dwkcommentaries.com (June 9, 2011), https://dwkcommentaries.com/2011/06/09/international-criminal-justice-the-jesuits-case-in-the-truth-commission-for-el-salvador; The Salvadoran Truth Commission’s Investigation of the 1980 Murders of the Four Churchwomen, dwkcommentaries (Dec. 19, 2011), https://dwkcommentaries.com/2011/12/19/the-salvadoran-truth-commissions-investigation-of-the-murders-of-the-four-american-churchwomen; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case.

[4] Thanks for Tim’s El Salvador Blog (http://luterano.blog spot.com) for much of the information on the reactions to the Chamber’s decision.  David Morales: The sentence “is a tool of greater scope to demand justice, DiarioCoLatino (July 14, 2016) http://www.diariocolatino.com/david-morales-la-sentencia-es-una-herramienta-de-mayores-alcances-para-exigir-justicia; Dalton, Declared unconstitutional the amnesty in El Salvador, El Pais (July 14, 2016) http://internacional.elpais.com/internacional/2016/07/15/america/1468541983_506876.html.

 

 

 

 

Inspiration of a Christian Lawyer by the Martyred Jesuit Priests of El Salvador

In my first visit to El Salvador in April 1989 I did not know anything about the University of Central America (Universidad de Centro America or UCA) or about its Jesuit professors.

UCA's Romero Chapel
UCA’s Romero Chapel
Fr.  Jon Sobrino
Fr. Jon Sobrino

 

 

 

 

 

 

 

 

That started to change when the other members of my delegation and I visited UCA’s beautiful, peaceful campus, in contrast to the noisy bustle of the rest of San Salvador, and when we had an hour’s calm, reasoned conversation with one of its professors, Fr. Jon Sobrino, S.J., a noted liberation theologian. I came away impressed with UCA and with Sobrino.

I, therefore, was shocked six months later to hear the news of the November 16, 1989, murder of six of UCA’s Jesuit professors and their housekeeper and daughter. How could such a horrible crime happen to such intelligent, peaceful human beings in that tranquil, academic setting?

Martyred Jesuits, Housekeeper & Daughter
Martyred Jesuits, Housekeeper & Daughter

I was even more appalled when I learned about the selfless, courageous lives of the murdered Jesuits who used their minds, education and spirits to help the poor people of that country and to work for bringing about a negotiated end to its horrible civil war.

Their deaths were repetitions of the horrible assassination of Archbishop Oscar Romero on March 24, 1980, who like the Jesuits had used his mind, education and spirit to help the poor people of his country and to condemn violent violations of human rights. The same was true of another Salvadoran Roman Catholic priest, Rutilio Grande, who was murdered in 1977 because of his protests against the regime’s persecution of the poor people, and of the 1980 murders of the four American churchwomen, who worked with the poor in that country.

Thus, Romero, Grande, the four American churchwomen and the murdered Jesuits are forever linked in my mind as profound Christian witnesses and martyrs. Their examples have strengthened my Christian faith to love God with all your heart, mind and soul and your neighbor as yourself.

UCA's Romero Chapel
UCA’s Romero Chapel
Capilla de Hospital de la Divina Providencia
Capilla de Hospital de la Divina Providencia

 

All of these experiences have inspired me to learn more about El Salvador, Romero, Grande, the churchwomen and the Jesuits’ Christian witness in the midst of violence and threats to their own lives. On my subsequent five trips to that country, I always visit UCA for prayer in the Romero Chapel where the Jesuits’ bodies are buried and in the beautiful chapel of a cancer hospital where Romero was assassinated.

On my 2000 visit to El Salvador for the 20th anniversary of Oscar Romero’s assassination, my group visited UCA to spend time with its then Rector, Dean Brackley, a Jesuit priest from the U.S. who went to El Salvador to help UCA after the murders of his brother priests. He impressed me as a calm voice of reason and passion in UCA’s ministry of helping the poor and the country.

In 2010 I returned to El Salvador for the 30th anniversary of Romero’s assassination. On my delegation’s visit to UCA, we spent time with its then Rector, José Maria Tojeira, S.J.. He was an amazingly serene and soft-spoken man. He told us he was a new “church bureaucrat” (the Jesuit Provincial for Central America) at UCA in November 1989 and lived nearby, but not on the campus. During the night of November 15th-16th he heard gunfire and thought there must have been a skirmish between the Salvadoran security forces and the guerrillas. The next morning he went to the campus and was one of the first people to see the dead bodies of his six fellow Jesuits and their cook and her daughter. He nonchalantly said to our group, “That morning I thought I was the next one to be killed.” Later that day he went to his office and found faxed messages of support and solidarity from people all over the world. Then in the same casual manner, he said he thought, “Well, maybe I am not the next to be killed.”

As a result, my cloud of Salvadoran witnesses includes Oscar Romero; Rutilio Grande; the American churchwomen; the Jesuit priests; Fr. Brackley; Fr. Tojeira; Bishop Menardo Gomez of the Salvadoran Lutheran Church, who escaped a death squad on the night the Jesuits were murdered; Salvador Ibarra, who in 1989 was a lawyer for the Salvadoran Lutheran human rights office; and my Salvadoran asylum clients. Outside of El Salvador, of course, I am impressed by another Jesuit, Pope Francis.

I have been humbled to learn about the incredible courage and minds of the Jesuits, not just at UCA, but at other Jesuit universities that are generally regarded as the best of Roman Catholic institutions of higher learning. Simultaneously I am puzzled how such a marvelous group of religious men could have emerged from the Jesuits who were the shock-troops of the Counter-Reformation and did so many horrible things during the Spanish Inquisition.

All of this also inspired me to become a pro bono lawyer for Salvadorans and later others (an Afghani, a Burmese man, two Somali men and two Colombian families) who were seeking asylum or other legal status that would enable them to remain in the U.S. and escape persecution in their own countries. I always have regarded this as the most important and spiritually rewarding thing I have ever done. As I did so, I often reflected that I was able to do this in the secure and comfortable legal office of a large Minneapolis law firm. I did not have to risk my life to help others as did my Salvadoran saints.

After I had retired from practicing law in 2001, the Jesuits along with Archbishop Oscar Romero continued to inspire me to learn more about international human rights law as I co-taught a course in that subject at the University of Minnesota Law School from 2002 through 2010. In the process, I was amazed to discover the array of inter-related ways the international community had created to seek to enforce international human rights norms in a world still based essentially on the sovereignty of nation states.

I then was inspired to use my legal research and writing skills to investigate how these various ways had been used to attempt to bring to justice the perpetrators of the assassination of Archbishop Romero, the rapes and murders of the American churchwomen and the murderers of the Jesuit priests and then to share the results of that research with others on this blog. Many posts have been written about Romero, including the various unsuccessful legal proceedings to identify and punish those responsible for that crime. Other posts have discussed the criminal case still pending in Spain over the murders of the Jesuits and their housekeeper and daughter while another post summarized other legal proceedings that unsuccessfully sought to assign criminal responsibility for the murders of the Jesuit priests other than the brief imprisonment in El Salvador of two military officers.

I also have written the following other posts prompted by the 25th anniversary celebration of the lives of the priests and commemoration of their murders:

I give thanks to God for leading me in this path of discovery and inspiration.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fr. Dean Brackley, S.J., Another Brave Jesuit Priest

Fr. Dean Brackley, S.J.
Fr. Dean Brackley, S.J.

On my 2010 trip to El Salvador, I had the honor and privilege to be a member of a group of Americans who spent some time with our fellow American, Fr. Dean Brackley, S.J., then the Rector of the University of Central America (Universidad de Centro America or UCA). I recall being impressed by his warm and engaging manner as he shared his experiences in that country and urged us to tell our friends in the U.S. about our experiences.[1]

He came to UCA in 1990 soon after the murders of his Jesuit brothers in November 1989. Brackley had seen a notice that UCA was looking for replacements for the slain priests. Although he admitted to being scared, the job description seemed to have his name on it. He told a friend,  “They wanted a Jesuit. They wanted someone who had a Ph.D. in theology. They wanted someone who spoke Spanish. I started looking around and realized there weren’t that many of us.”

Brackley, therefore, volunteered to leave his teaching at Fordham University in New York City and to go to UCA to help it surmount its many challenges in the aftermath of that brutal crime.

He taught and served on UCA’s staff. He also became pastor to two municipalities and started the Scholarship Program of the Martyrs of the UCA to support poor students at the university. In his 2010 book, Spirituality for solidarity: Ignatian new perspectives, he said, “”The world will change only if human beings are changed, if people are free to love, to resist the lure of wealth and to be in solidarity with the poorest of their brothers and sisters.”

Brackley is remembered especially “for his tireless efforts to build awareness and solidarity between churches and universities in the United States and the poor in Central America. He wrote and lectured extensively on the need for higher education to connect scholarship to service and resources to the social reality of the poor.” Brackley laid out the radical challenge that education and privilege place upon the shoulders of those with resources, often describing what contact with the poor does to us: ‘First, it breaks your heart, then you fall in love, then you’re ruined for life.’”

In the summer of 2011, after he was diagnosed with pancreatic cancer, he wrote to friends, “”The faith factor is decisive, as you know. When I ask you and Monseñor Romero to pray, I mean: Let us pool our faith. Mine is weak enough, but with all of us, that is another matter. God wants to give life more than we want life. St. Ignatius wrote to Francisco Borja: ‘I consider myself wholly an obstacle to God’s work in me. In other words, the exercise of faith, our fundamental human challenge, gets us out of the way of God’s work. So, let us pray.’”

After his death of the disease at UCA on October 16, 2011, Congressman James P. McGovern of Massachusetts said that Brackley “was a bridge between two worlds:” the U.S. and El Salvador. He offered “his talents, his passion and his life to . . . [UCA] and to the Salvadoran people. He was our anchor and our conscience, not just for the faith community, but for all of us in American who share his love for the Salvadoran people and who remain engaged in their hopes and struggles. [He] . . . became our bridge of solidarity, our commitment to justice, faith and love. . . . On my many trips to El Salvador, his enthusiasm, humor and passion kept my spirits lifted, my mind focused, and my heart engaged.”

McGovern added that Brackley “joins Monseńor Oscar Romero, my friends the martyred Jesuits, the four American churchwomen, and so many Salvadorans as a beacon of integrity and hope. He will always be ‘presente’ in our lives and work.”

On the third anniversary of Brackley’s death this October, a memorial mass was held for him at UCA. Rocio Fuentes remembered that in the last six months of his life, he was “full of joy and gratitude . . . [for] his family supporting his vocation; [for] the Society of Jesus for their support in the pursuit of justice; [for] Salvadorans, because through them he learned to know the true meaning of solidarity; and for God’s presence.”

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[1] This post is based upon personal recollection, my blog post, Annual Commemorations of Oscar Romero’s Life (Oct. 20, 2011); Marrin, Jesuit who replaced slain Jesuit priests dies, Nat’l Cath. Reporter (Oct. 17, 2011); Vitello, Rev. Dean Brackley, 65, Dies; Served in El Salvador, N. Y. Times (Oct. 29, 2011); Letter, Congressman James P. McGovern to Fr. Jośe Maria Tojeira (Oct. 18, 2011); Rocio Fuentes, Dean, exemplary Christian (Oct. 26, 2014).

Additional Commemoration of the Martyred Jesuits

Andreu Oliva
Andreu Oliva

Andreu Oliva, the current Rector of the University of Central America (Universidad de Centro America or UCA), in an article titled, Celebrating with gratitude, hope and commitment, said, “[W]e celebrate [the martyred Jesuits] because their wrongful death, so violent and cruel, has become a source of life, urging delivery, the commitment to the causes of the poor and marginalized, to move forward in building the Kingdom of God among us.”

“The martyrs continue to inspire us today and not only in El Salvador: they are inspiration for many people around the world. The large number of visitors, mainly from the U.S., Spain and Canada, who came these days to El Salvador to participate in the anniversary, and to be happy and full of spirit, strengthened in their commitment to the struggle for faith and justice that faith requires of us is without doubt a clear example of the power of the resurrection, that love is stronger than hate. In short, the promise of Jesus is made: ‘Blessed are those who hunger and thirst for righteousness for they shall be filled.’”

“It’s been 25 years since the slaughter happened in the UCA, but the martyrs continue giving life, continue to inspire commitment to justice and the poor, continue evangelizing and attracting women and men to join the project of the Kingdom of God. They are an example of a life offered from following Jesus, and lived to the fullest, in the service of the Salvadoran people, serving the defense of the poor and the persecuted by demanding that the equal dignity of every human being be recognized. They belong to us and to the world as examples to follow, an invitation to continue on the same path and with the same feeling.”

 

 

University of Central America Endorses the Beatification and Canonization of Salvadoran Archbishop Oscar Romero

Archbishop Oscar Romero
Archbishop Oscar Romero

 

In the midst of its commemoration of the 25th anniversary of the murders of its martyred Jesuit priests and professors, El Salvador’s University of Central America (Universidad de Centro America), also made news regarding the beatification and canonization of Salvadoran Archbishop Oscar Romero.

 

In early November UCA’s website had an article by Jon Sobrino, S.J., the Director of its Archbishop Romero Center, entitled, “Beatification of Bishop.” He reported that Salvadoran Archbishop Jose Luis Escobar recently had said that Pope Francis had told him that Romero would be beatified next year (2015).

Subsequently Sobrino corrected this to say that he had not attended the meeting of the clergy where Archbishop Escobar made the announcement, but instead Sobrino had received the information second-hand from someone who had conveyed erroneous information.  In particular, Sobrino clarified that Archbishop Escobar had not spoken to Pope Francis, but instead to Archbishop Vincenzo Paglia, the postulator (advocate) of Romero’s cause for beatification and canonization, who had said beatification would “possibly” be in 2015.[1]

After the publication of the initial Sobrino article, Archbishop Escobar said that he hoped beatification of Romero would occur in 2015, which will be the 35th anniversary of his assassination and part of the Triennial, 2014-2017, ending in 2017, the year marking the centennial of his birth. But although beatification “was in its final stages, no date has been set,” said the Archbishop.[2]

On November 14th UCA published on its website an editorial, “Holy to the World,” endorsing the beatification and canonization of Romero. It started, “The news [by UCA] of the possible beatification of Archbishop Romero [in 2015]spread like wildfire, both inside and outside the country. The UCA has received many reactions from many countries of the continent. The vast majority of these reactions expressed joy and hope for good news. Only a very small group of people was opposed.”

The editorial continued “Eventual beatification and subsequent canonization of Romero will be an act of justice to his career, qualities and generous dedication to the Salvadoran people. Definitely, Monsignor Romero was and still is . . . good news for the poor. To recognize this is to recognize the causes he defended, by which he lived and why he was murdered. Beatification and canonization [will recognize his] complaint against structural injustice and his fight for justice for the victims of senseless violence and an exclusionary and undemocratic system that concentrates wealth in a few hands.”

“Doing justice to Archbishop Romero is also doing justice [for those] he championed:  the work of [Fr.] Rutilio Grande, the suffering of many victims of state violence who found comfort, encouragement and hope in Romero and the Archbishop’s legal aid office. Doing justice to Archbishop Romero also is doing justice to the victims of the violence he denounced, victims before and after their death, and the poor.”

Beatification and canonization also “implies a moral condemnation of his opponents, who reviled him, persecuted others and rejoiced with his murder.” This anticipated recognition of Romero leaves “in the pit of shame and disrepute the mainstream media, which systematically slandered him, branded him a communist agitator and even suggested the way to silence him.” It also will “bare the guilt of those who constantly threatened him, the masterminds who forged his death.”

“In short, to do justice to Archbishop Romero is to accept that he was right, that he was telling the truth, and makes these points clear to those who until now have remained rooted in lies and injustice.”

Beatification and canonization “will only be a formal recognition of what most people have in their hearts and cries. Romero said that if he were killed, he would be resurrected in the Salvadoran people. But his life and resurrection have transcended borders, religions and ideologies. Archbishop Oscar Romero is holy not only for El Salvador, but for the whole world.”

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[1] A Salvadoran newspaper (Diario CoLatino) had an article about the Archbishop’s correction of the story. A fascinating, detailed examination of Sobrino’s error is provided in an article on the “SuperMartyrio” website that is dedicated to advocating Romero’s beatification and canonization:

[2] Earlier posts have discussed the Roman Catholic Church’s processes for beatification and canonization of Romero: Beatification of Salvadoran Archbishop Oscar Romero? (May 23, 2013); Progress on Vatican’s Canonization of Archbishop Oscar Romero (May 20, 2014); Pope Francis Urges Swift Beatification of Salvadoran Archbishop Oscar Romero (Aug. 22, 2014). My attention to this issue prompted the writing of another post, A Presbyterian’s Musings About Saints (Sept. 19, 2014).

Update on Spain’s Case Regarding the Murders of the Jesuits of El Salvador

Spain’s National Court (Audicencia Nacional) since November 2008 has been conducting a criminal case regarding the murders of six Jesuits priests and their housekeeper and her daughter in El Salvador on November 16, 1989. This lead in January 2009 to the Spanish equivalent of indictments of 14 former Salvadoran military officials and soldiers for murder, crimes against humanity and state terrorism. In May 2011 the court added six indictees and issued 20 international arrest warrants. Thereafter in November 2011 Spain issued requests for extradition of these men to Spain to face the charges. [1]

However, in August 2011 El Salvador’s Supreme Court refused to enforce the Interpol arrest warrants for 13 of the indictees who were living in that country and in May 2012 denied the requests for their extradition on the ground that the country’s constitution prohibited extradition of its citizens. Another indictee, Inocente Orlando Montano, had been living in the U.S. and now is in U.S. prison after pleading guilty to lying multiple times to U.S. immigration officials. (One indictee, former Colonel René Emilio Ponce, died during the prior proceedings.)

Just this October the Spanish court’s Criminal Chamber, en banc, decided that the court did have jurisdiction over all of the charges: murder, crimes against humanity and state terrorism.

Almudena Bernabeu
Almudena Bernabeu

Last week Almudena Bernabeu, CJA’s International Attorney and Transitional Justice Program Director and the lead private attorney for the prosecution in this case, was in El Salvador to discuss the case in connection with the twenty-fifth anniversary of these horrible crimes. [2]

First, she reported that the case is now at a standstill because none of the suspects is physically present in Spain.

Inocente Orlando Montano
Inocente Orlando Montano

Next year, however, she hopes this will change. In April of 2015, Senor Montano will complete his incarceration in the U.S. [3] By then the U.S. must decide whether it will honor Spain’s request to extradite Montano to Spain.

Although the U.S. is not legally required to consult with El Salvador on this issue, as a matter of inter-state courtesy the U.S. probably would do so, she said. Therefore, Bernabeu has conferred with officials of the Salvadoran government, who have confirmed that there is absolute willingness to collaborate with the Spanish process for the extradition of Mr. Montano from the U.S.  Thus, it is important to know that when the U.S. faces the decision whether to extradite Montano, the government of El Salvador has decided not to interfere.

Second, upon such an extradition and Montano’s arrival in Spain, the Spanish case would be re-activated to prepare the case for trial, presumably within 30 days.

Third, if, however, the U.S. deported Montano to El Salvador, the Salvadoran courts probably would refuse to extradite him in light of their prior refusal to extradite to Spain other indictees in the case who are Salvadoran citizens. In that event, the case in Spain could not proceed further.

Fourth, Bernabeu said she unsuccessfully has tried three times to have former Salvadoran President Alfredo Cristiani added as a defendant and indictee because she believes the evidence shows he ultimately was responsible for the crime committed by the military’s High Command and was an accessory to the killing. Indeed, she said that the testimony of two former Salvadoran military officials and documents, including declassified U.S. documents from the CIA, FBI and Department of Defense, show that Cristiani knew of the plan to kill the Jesuits before the murders happened. Whatever the reasons, the Spanish court has been reluctant to join a former foreign president as a defendant. [4]

Fifth, she said El Salvador’s General Amnesty Act of 1993 was a major problem for this case and others like it. This was so even though the Inter-American Commission on Human Rights in December 1999 decided in the Jesuits case that the Amnesty Law violated the American Convention on Human Rights and ordered El Salvador to declare it null and void and even though the Inter-American Court of Human Rights in December 2012 in another case (the El Mozote Massacre) ordered El Salvador to repeal the Amnesty Act. [5] That has not yet happened, but the Constitutional Chamber of El Salvador’s Supreme Court sometime soon is expected to rule on the constitutionality of that Act.

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[1] The Spanish court has jurisdiction over the case under Spain’s statute for universal jurisdiction over the most serious crimes of international concern. This statute is an implementation of the international legal principle of universal jurisdiction whereby a state has universal jurisdiction over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator.  A detailed summary of the Jesuits case along with some of the court documents and other materials is available on the website of the non-profit Center for Justice and Accountability (CJA) based in San Francisco, California. CJA, the sponsor of the case in Spain. It is an international 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.

[2] This account of Bernabeu’s comments is based upon Castillo, 25 Yrs After El Salvador Priest Killings, Groups Press for Justice, NBC News (Nov. 13, 2014); Labrador & Fatima, The government of El Salvador has decided not to hinder Montano’s extradition to Spain, El Faro (Nov. 14, 2014); Jaminez, Await Extradition of Montano, DiarioCoLatino (Nov. 15, 2014); Dalton, Cristiani knew at time of slaughter of Jesuits in El Salvador,” El Pais (Nov. 17, 2014). El Faro also recently published (a) a collection of articles from other Salvadoran newspapers evidencing the right’s hatred of the Jesuits before their murders; (b) biographies of the murdered priests, their housekeeper and her daughter and the six Salvadoran military personnel who were prosecuted for the crime in El Salvador (with only two convicted and then subsequently released from prison on the basis of the General Amnesty law); (c) an article describing how that Salvadoran prosecution for this crime was impeded by their attorney general; (d) an archive of U.S. diplomatic cables and other documents about the crime; and (e) a hyperlinked collection of El Faro’s prior articles about the Jesuits case.

[3] The U.S. legal proceedings against Montano are discussed in prior posts and comments: Comment [to “Spain Requests Extradition” post]: Ex-Salvadoran Military Officer [Montano] Indicted for Alleged Violations of U.S. Immigration Laws (Feb. 12, 2012); Comment [to “Spain Requests Extradition” post]: Former Salvadoran Military Officer [Montano] Pleads Guilty to Lying to U.S. Immigration Officials (Sept. 15, 2012); Former Salvadoran Colonel Inocente Orlando Montano To Serve 21 Months in U.S. Prison (Sept. 5, 2013).

[4] On December 16, 2008, the U.S. Embassy in El Salvador sent a cable to the U.S. Secretary of State. It reported that earlier that month senior officials of the Salvadoran government went to Spain and met with its attorney prosecuting the Jesuits case and with other top-level Spanish government officials, who said they were embarrassed about the case’s seeking to add Alfredo Cristiani, El Salvador’s former president, as a defendant. The Spanish prosecutor also promised support and cooperation to the Salvadoran officials.

[5] Yet another post reviewed the decision in the El Mozote Massacre case by the Inter-American Court of Human Rights.

The Martyred Jesuit Priests of El Salvador Continue To Inspire Others

Bodies of Jesuits, November 16, 1989
Bodies of Jesuits,         November 16, 1989

Twenty-five years ago today (November 16th), six Jesuit priests and professors at El Universidad de Centro America (the University of Central America or UCA) in San Salvador, the capital of El Salvador, were brutally murdered along with their housekeeper and her daughter. The priests were: (1) Ignacio Ellacuría, the Rector of the University; (2) Ignacio Martín Baró, an UCA social psychologist whose research focused on the psychic problems of living in a context of structural violence; (3) Segundo Montes, an UCA anthropologist interested in the effects of social stratification and displaced victims of the country’s civil war; (4) Amando López Quintana, the chair of UCA’s philosophy department, a parish priest and director of a mass-literacy campaign; (5) Joaquín López y López, director of UCA’s Fe y Alegria (Faith and Joy), a vocational training program for impoverished youth; and (6) Juan Ramón Moreno, who served at UCA’s Center for Theological Reflection, which addressed questions of faith and justice.

An U.S. journalist, Mary Jo McConahay, was in El Salvador that day, and after hearing reports that morning of the murders she was one of the first individuals to see the bodies of four of the Jesuits in a garden near their UCA apartments. In a recent article in the U.S. National Catholic Reporter she recounts what is was like to be there that morning:

  • “On the grass a few feet from the residence lay the forms of four bodies covered with white sheets. What appeared to be blood stained some of the sheets. . . .
  • In the hall [of the residence] with doors open to rooms on both sides, a body lay face down on the floor. A strip of what looked like blood marked the floor, as if the body had been dragged.”
  • [Fr. José María Tojeira, the Jesuit provincial for Central America] . . . bade me step inside one of the rooms, where another man lay dead . . . .”
  • We stepped outside past the white sheets and turned to descend a few steps to stand at the open door of a small apartment. Inside lay two bodies, a woman and a young girl, fallen backward a few feet from the threshold . . . . I recorded how the girl’s pelvic area looked as if the killer had emptied his gun there, how the woman’s legs had fallen over the girl’s, as if she had stood in front when the killers entered . . . . “
  • “[Back in the garden] the sheets came off [the bodies] and there in death were the priests I had known in life. . . . There was Ellacuría, his clear voice silenced, lying face up, as if he had looked at his killers at the moment of death” joined by Segundo Montes, Ignacio Martín-Baró and Amando López.”

Subsequent investigations have revealed that members of the country’s Armed Forces under the direction and command of higher officials committed these horrible crimes. They did so in order to silence Fr. Ellacuría’s publicly criticizing social injustices in the country and calling for peace negotiations to end the civil war and persecution of the poor and to leave no witnesses to the murder of Ellacuría.

UCA’s Commemoration

Jesuit Martyrs & Housekeeper & Daughter
Jesuit Martyrs & Housekeeper & Daughter

UCA is marking this anniversary with nine days of programs and masses. This post will discuss two of those events, and subsequent posts will cover others as they become available on the UCA website.

In a discussion about the legacy of the martyrs, Hector Saymour said the legacy was the mission of social projection for UCA and other universities.  Such universities by engaging in rational and scientific research seek to increase understanding of the current situation and to create viable theoretical alternatives. For UCA and other Jesuit universities Jesus Christ is the inspiration for this struggle to transform unjust structures and to construct a new civilization based on solidarity. Omar Serrano, the Director of UCA’s Social Projection, added that UCA “has a continuing commitment to continue the legacy of the martyrs and to ‘transform the reality of Salvadoran society.’”

UCA also published an essay–“Freedom and Martyrs”—by the previously mentioned José Maria Tojeira, now the Director of UCA’s Campus Ministry and the former UCA Rector (1997-2010). It focused “on one of the fundamental characteristics usually common to all martyrs, since the dawn of Christianity until today, including, of course, Romero and many other Salvadorans. This is freedom. As St. Paul said, “for Christ has set us free” (Gal 5: 1).

The martyred Jesuits, Tojeira continued, were “universal fellow human beings of goodwill, [who] lived their freedom in an exceptional way. They started practicing it very soon with their youthful decision to come to America, leaving their roots, family and familiar environment. Their maturing love opened them to the new world . . . with a true devotion to the particular world of the poor of El Salvador. The option for the poor is already an act of freedom, and they demanded the Latin American Church take the matter seriously. And they used [UCA] . . . to find the roots of reality, not only opted for the poor, but also for their causes: social change, liberation from injustice, fully incorporating human rights into existence, creating a new culture in which they predominate over having and work over capital.”

“The severe social tensions (the fruit of injustice), repression and later civil war posed new challenges. . . . When words soar and thinking intellectuals become an enemy to the military, it is not easy to keep . . . [one’s] balance and safeguard life. The Jesuits’ decision to stay, to continue speaking freely, to continue publishing, to continue to defend the victims, risking life even looking at the face of death without defending their trust in reason and the Gospel, shows their tough libertarian convictions. For freedom is not measured by speeches defending money, property, or self-interest, but by the life choices of defending human rights.”

According to Tojiera, “In the exercise of this freedom . . . the martyred Jesuits maintained [UCA as] a quality university in a time that viciously persecuted intelligence and condemned the national university. At the same time, they multiplied their analysis and social criticism, their choice for peace with justice and human rights, while the government encouraged the creation of universities to promote conservative ideologies. The martyred Jesuits wanted to remain faithful to the intellectual quality of their voices so that victims would be protected, so that peace would emerge. And from that intellectually respectable quality, they started to speak of dialogue and negotiation as the only valid way out of the conflict.”

UCA’s “publications, conferences, studies [in 1989 and before] were mainly aimed at saving lives. The Jesuits said they stayed in El Salvador to fight for peace: ‘Basically what we want and where we direct our efforts is to save lives.’ Wanting to save the lives of many is what eventually led to the Jesuits’ death.  Finally, the Army, by a compact of silence and concealment, took the decision to kill the Jesuits, a crime against humanity, for which the military still has not apologized nor has recognized it as such.  What 25 years ago was cause for tears, now is a cause for rejoicing. Because our comrades still are alive generating critical thinking, lucid intelligence and true freedom.”

U.S. Jesuit Conference

Father Timothy Kesicki, SJ, who is the president of the U.S. Jesuit Conference, said, “The slaughter of eight innocents had a visceral impact on me and my Jesuit brothers, one that continues to shape us. More importantly, 25 years later, it helps highlight the continuing failures of U.S. policy toward Central America. Back in 1989, the UCA killers were instructed to leave no witnesses, but by silencing eight people, they unintentionally and, ironically, gave voice to a generation of activists proud to walk in the footsteps of the martyrs. We need that same sense of urgency and mission now, as we struggle to help those suffering in Central America today.”

Last week Fr. Kesicki led a visit to El Salvador by Jesuit provincials, the incoming international director of Jesuit Refugee Service, the president of the Association of Jesuit Colleges and Universities and the presidents of nine Jesuit universities. They visited UCA, participated in its forum and commemorated the martyrs at Mass at the Cathedral in San Salvador and at the Romero Chapel, where Archbishop Óscar Romero was assassinated in 1980.

In addition, more than 1,300 participants from Jesuit universities, high schools and parishes converged on Washington, D.C. this weekend for the annual Ignatian Family Teach-In for Justice. It will feature a wide array of speakers and the premiere of a documentary about the martyrs, “Blood in the Backyard.” Other scheduled events include a Capitol Hill rally and congressional visits. Each of the nation’s 28 Jesuit colleges and universities also marked the anniversary with lectures, panel discussions, Masses and prayer services.

An article this month in the U.S. National Catholic Reporter remembered these words by Fr. Ellacuría when in 1982 he received an honorary degree from California’s Santa Clara University, “Our work is oriented . . . above all on behalf of a people who, oppressed by injustice, struggle for their self-determination—people often without liberty or human rights. The university should be present intellectually where it is needed: to provide science for those without science; to provide skills for those without skills; to be a voice for those without voices; to give intellectual support for those who do not possess the academic qualifications to make their rights legitimate.”

The website for the U.S. Conference of Jesuits has other fascinating relevant features: (a) “Legacy of the Martyrs: Lives Changed, Causes Embraced,” that contains recollections of 38 U.S. Jesuit priests and other religious workers of what they felt when they first heard the news in 1989 of the murders of the six priests in El Salvador; and (b) U.S. Jesuits’ recollections of the martyrs.

Fr. Michael McCarthy, S.J.

 Fr. Michael McCarthy, another fellow Jesuit priest and a professor and the executive director of California’s Ignatian Center for Jesuit Education at Santa Clara University, also has expressed in the New York Times his inspiration by the martyred Jesuits. He credits Ellacuría’s recognizing “the responsibility of his institution as lending intellectual support to those who did not have the academic qualifications to legitimize their rights. His life has challenged me to keep my sights not on conventional measures of success but on what really matters: the contribution I am making to the world.”

In addition, McCarthy treasures Ellacuría’s “vision of a university that would be an ‘inescapable social force’ for good. That is no less important in 2014 than it was in 1989. I still believe that an education not grounded in justice is a farce and that we desperately need wise, courageous, even heroic academic leaders to realize the highest purposes of education.”

 Conclusion

 Many others have been transformed and inspired by the witness and ministry of the Jesuit priests of El Salvador.

One of them, Fran Rossi Szplczym, Pastoral Associate for Administration, Immaculate Conception Church of Albany, NY, said, “the lust for power, control, and domination is essentially the way of the world. That is one of the reasons we who are Catholic [and other] Christians live our faith as we do. We are not here to be against the world, nor to withdraw from the world. Jesus might have gone to the desert now and then, but he did not come here to simply be alone and pray, or to hide out with the apostles and feel superior to everyone else. Jesus came to transform us and the world with it.”

She added, “We cannot give up, we cannot turn away, we cannot turn to violence. To walk to the cross with Christ might mean lying face down on the ground with part of your brain splattered nearby, but it also means that we must all be changed. That is the call of discipleship put into action, no matter the cost. Let the Jesuit martyrs of El Salvador remind us of this daunting task of loving and changing the world in Jesus’ name. No matter what tiny and beautiful, or grand and magnificent ways that we are called to be that change in Christ.”

As a Christian of the Presbyterian persuasion, I too have been inspired by the Jesuit martyrs as I will discuss in a subsequent post.