The words and music about vocation at the January 26th and February 9th worship services at Minneapolis’ Westminster Presbyterian Church have inspired my general thoughts about vocation set forth in a prior post. Now I reflect on my own vocations.
Until I was in my early 40’s, I had no religious beliefs after high school and no sense of vocation.
That started to change in 1981 when I joined Westminster and embraced what I now see as my first vocation: serving the church as a ruling elder (1985-1991) and over time as an active member of several of its committees (Spiritual Growth, Communications and Global Partnerships). More recently I joined its Global Choir. After all, a new member covenants to find “a definite place of usefulness” in the church.
For 10 years (2003-2013) I served as chair of Global Partnerships, which supervises the church’s partnerships with churches and other organizations in Cuba, Cameroon, Palestine and for a time in Brazil. This lead to my going on three mission trips to Cuba, one to Cameroon and another to Brazil. As a result, I established personal friendships with people in those countries as part of our collective, and my personal, vocation of being present with our brothers and sisters in other parts of the world and standing in solidarity with them. I also learned about the history, culture and current issues of those countries. This in turn lead to a strong interest in promoting reconciliation between the U.S. and Cuba and Cuban religious freedom, and as a U.S. citizen I have endeavored to do just that.
This sense of religious institutional vocation also encompassed my serving on the Board of Trustees of United Theological Seminary of the Twin Cities for another 10-year period (1988-1998). In my small way, I helped nurture future ministers of the church. In the process I got to know interesting members of the faculty, administration and board and about the life of U.S. seminaries.
I, however, initially struggled with how to integrate my newly reclaimed religious beliefs and my life as a practicing lawyer, and over the years found ways to share this struggle with others, especially with my fellow lawyers.
One way I discovered a vocation in the practice of law resulted from experiencing the bitterness and lack of reconciliation between opposing parties in litigation and, too often, as well between their lawyers, including myself. This experience lead in the late 1980’s through the 1990’s to a personal interest in, and writing and speaking about, alternative dispute resolution (ADR), one of whose objectives is resolution of such disputes more amicably, and to my active participation in the ADR Section of the Minnesota State Bar Association.
Another and more powerful vocation involving my professional life emerged when a senior partner of my law firm in the mid-1980’s asked me to provide legal counsel to the firm’s client, the American Lutheran Church (“ALC” and now the Evangelical Lutheran Church in America). The problem: how should the ALC respond to information that the U.S. immigration agency (INS) had sent undercover agents into worship services and Bible-study meetings at ALC and Presbyterian churches in Arizona that provided sanctuary or safe places to Salvadorans and Guatemalans fleeing their civil wars.
The conclusion of this engagement was the ALC and the Presbyterian Church (USA)—my own denomination—jointly suing the U.S. government to challenge the constitutionality of such spying. Eventually the U.S. district court in Arizona held that the U.S. Constitution’s First Amendment “free exercise” of religion clause protected churches from unreasonable government investigations.
U.S. immigration law was in the background of this case, but I did not know anything about that law. I, therefore, sought to remedy that deficiency by taking a training course in asylum law from the Minnesota-based Advocates for Human Rights.
I then volunteered to be a pro bono lawyer for a Salvadoran seeking asylum in the U.S. because of his claim to a well-founded fear of persecution in his home country because of his political opinions and actions opposing its government. Again, my initial motivation for this action was to be a better lawyer for the ALC.
I discovered, however, that being a pro bono asylum lawyer was my passionate vocation while I was still practicing law and continued doing so until I retired from the practice in the summer of 2001. In addition to El Salvador, my other clients came from Somalia, Afghanistan, Burma and Colombia. I was able to assist them in obtaining asylum and thereby escape persecution. In the process, I learned more about asylum law and other aspects of immigration law as well as the horrible things that were happening in many parts of the world. I was able to use my experience and gifts in investigating and presenting facts and legal arguments to courts and officials and came to see this as one of the most important and rewarding vocations I have ever had.
In the process of this asylum work, I also learned for the first time about the humbling and courageous ministry and vocation of Salvadoran Archbishop Oscar Romero, who was assassinated in March 1980 because he repeatedly spoke out against human rights violations in his country. He now is my personal saint. I also learned about the important and courageous work in that country by the Jesuit priests and professors at the University of Central America, six of whom were murdered in November 1989 for the same reason, and they too have become heroes for me.
Another Salvadoran I met on my first trip to that country enriched my sense of the potential for vocation in practicing law. He was Salvador Ibarra, a lawyer for the Lutheran Church’s human rights office, who spoke about the joy he experienced in his work.
After retiring from the full-time practice of law in 2001, I served as an Adjunct Professor at the University of Minnesota Law School (2002 through 2010) to co-teach international human rights law. I thereby hoped to encourage law students to become interested in the field and to include such work in their future professional lives. Thus, this became another vocation with the side benefit of enabling me to learn more about the broader field of international human rights.
I chose another retirement in 2011, this time from part-time teaching, in order to start this blog about law, politics, history and religion. I came to see it as yet another vocation. I think it important to share my religious experiences and beliefs in the midst of active consideration of legal and political issues and demonstrate that it is possible for an educated, intelligent individual to have such beliefs.
In 2011 as a member of the planning committee for my Grinnell College class’ 50th reunion. I thought we should do more to remember our deceased classmates than merely list their names in our reunion booklet. I, therefore, suggested that if each committee member wrote five or six obituaries, we would have written memorials for all of our departed classmates. However, no one else volunteered to participate in this project so I did it all myself except for a few written by spouses. After the reunion, I continued to do this when the need arises.
Although this project required a lot of work, I came to see it as pastoral work and rewarding as I learned about the lives of people, many of whom I had not really known when we were together as students. I drew special satisfaction when I learned that a classmate who had died in his 30’s had two sons who had never seen the College annuals that had a lot of photographs of their father as a physics student and co-captain of the football team, and I managed to find a set of those annuals which were sent to the sons. I thus came to see this as a vocation.
Many of these vocations resulted from invitations from others to do something, which I accepted. Initially the invitations did not seem to be calls for a vocation, and it was only after doing these things and reflecting upon them that I saw them as such.
The concept of vocation often seems like doing something for others without any personal rewards other than feeling good about helping others. I, therefore, am amazed by the many ways I have been enriched by these endeavors. I have learned about different areas of the law, different countries and the lives of interesting people, living and dead.
I feel blessed that I have discovered at least some of the work that God has called me to do, in Frederick Buechner’s words, “the work that I need most to do and that the world most needs to have done.”
Or as Rev. Hart-Andersen said on February 9th, “When Jesus calls we get up and go, stepping forward in the direction of the one calling us. Being a follower of Jesus is not a destination . . . . Being called to follow Jesus is a way of life, a pilgrimage on which we embark together.”
On August 27, 2013, the federal court in Boston, Massachusetts sentenced Inocente Orlando Montano to 21 months in prison for violating U.S. immigration laws.
To obtain certain relief under those laws, Montano had stated to U.S. immigration officials that he had never served in any foreign military service, had never received military weapons training and had never been involved in persecuting others. A year ago he pleaded guilty to three counts of a federal indictment for those statements.[1]
In fact, Montano had served in the Salvadoran military, had received such training and had been involved in persecuting others. The record in the U.S. criminal case established the following:
During the Salvadoran Civil War, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.” [2]
Before the November 1989 murder of the Jesuit priests in El Salvador, Montano was an active participant in trying to publicly discredit the priests, including publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA) who was one of those murdered, as one “fully identified with subversive movements.”
In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)[3]
After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in charge of investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”[4]
Moreover, in May 2011, Montano was one of 20 former Salvadoran military officials who were subjects of arrest warrants by a Spanish court investigating the murder of the Jesuit priests, and in December 2011 the Spanish court issued a request to the U.S. for Montano’s extradition to Spain to face trial on those charges.[5]
Judge Douglas P. WoodlockMoakley U.S. Courthouse
The 21-month prison sentence was imposed by U.S. District Judge Douglas P. Woodlock.
The Judge noted that the site of the sentencing hearing–the Boston federal courthouse–was named after former U.S. Congressman John Joseph (“Joe”) Moakley, who had lead a congressional investigation of the murders of the Jesuits and whose words from a speech he had given at the site of the Jesuits murders had been engraved on the front of the courthouse: “There is no such thing as half justice. You either have justice or you don’t. You either have a democracy in which everyone–including the powerful–is subject to the rule of law or you don’t.”
Judge Woodlock closed the sentencing hearing by quoting the final summation of Justice Robert Jackson in the 1946 Nuremberg trials of Nazi perpetrators:
“These defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: ‘Say I slew them not.’ And the Queen replied, ‘Then say they were not slain. But dead they are…’ If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no victims, there has been no crime.”
Judge Woodlock then added, “In El Salvador, “there was a war, there are victims, and there has been a crime.”
[1] A prior post reported on early developments in the U.S. criminal case against Montano.
[3] A prior post discussed the actual murders of the Jesuits along with their housekeeper and her daughter while another post reviewed the Truth Commission’s report regarding same.
[4] The attempted cover up of the Salvadoran military’s planning and commission of the murders was discussed in a prior post while another post reviewed the Salvadoran criminal case about the murders.
[5] A prior post covered the Spanish court’s arrest warrants; another, developments in that case; and another, the requests for extradition. After Montano’s sentencing, the Center for Justice and Accountability, which backed the case against Montano, said that the U.S. has indicted that it would be amenable to his extradition to Spain after he had served his U.S. sentence.
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)).
Innocente Orlando Montano
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]
Sergei Magnitsky Grave
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.
