Tuesday, February 9, 2016
Some important new stories have been lost in the midst of the media frenzy of the Presidential primary. One of interest to MOJ readers involves an important step toward justice regarding the 1989 massacre of 6 Jesuit priests, their housekeeper, and her daughter
It has been over 25 years since Salvadoran soldiers brutally murdered Ignacio Ellacuría, S.J., Ignacio Martín-Baró, S.J., Segundo Montes, S.J., Juan Ramón Moreno, S.J., Joaquín López y López, S.J., Amando López, S.J., Elba Ramos and her 16 year old daughter, Celina Ramos. In the intervening years, we have seen cover ups, trials, amnesties, complaints, arrests, extraditions, and numerous other events. To this day, however, complete justice for these victims has never been achieved.
However, as the National Catholic Reporter states, "[t]he impunity enjoyed for 25 years by the killers of six Jesuit priests in El Salvador began splintering Feb. 5 after a U.S. judge ordered one of the suspects who'd fled to the United States to be extradited to Spain to stand trial for one of the most notorious crimes of the country's civil war."
The main recent litigation in this case has been occurring in Spain through a criminal complaint filed by the Center for Justice and Accountability against former Salvadoran President Alfredo Cristiani Burkard and several former military members (five of the victims were Spanish citizens). This legal proceeding has resulted in indictments for 20 individuals and triggered many legal disputes. (A complete summary of the case may be found here). But on February 5, 2016 U.S. Magistrate Judge Kimberly Swank issued what has been called a historic ruling when she ordered United States Marshals to take custody of Col. Inocente Orlando Montano for extradition to Spain.
This is remarkable for many reasons, but two important aspects of this immediately emerge. First, she issued a lengthy 23 page ruling in which she made detailed factual findings regarding Montano's role and the events surrounding November 16, 1989. Secondly, this seemingly minor procedural event in the magistrate court of the Eastern District of North Carolina seems to have triggered further arrests of suspects in El Salvador. Hours later, Salvadoran authorities arrested four former members of the military and the President called for the others to turn themselves into authorities.
Again, in the words of the National Catholic Reporter,
Sources familiar with the case said that the historic ruling by U.S. Magistrate Kimberly Swank in the Montano case likely provided Salvadoran authorities the cover they needed to begin arresting former high-ranking officers in a country where the military still holds enormous power.
Montano is the highest-ranking official in recent history to be ordered extradited from the United States for human rights violations. At the time of the massacre, Montano served as the Vice Minister of Defense for Public Safety, in command of the National Police, the Treasury Police, and the National Guard.
While there are no doubt many more legal battles to be fought, accountability is essential in this case and all cases. This is indeed a step forward by a magistrate judge which has implications throughout the world.
Monday, February 1, 2016
As National Slavery and Human Trafficking Prevention Month comes to an end, it seems apt to comment here at MOJ on this growing form of human degradation and the role we play in its existence. But what does this pressing social and moral issue have to do with Catholic Legal Thought? The relevance is more than the obvious fact that that it "strips victims of their freedom and violates the dignity of the human person created in the image of God." Given the intersection this form of exploitation has with criminal law, international law, labor law, government corruption, and other legal institutions; modern day slavery implicates the obligations of the Church and legal community to respond in a unique way. Failure to do so destines both the American Church and society to repeat a complicated and at times troubling history regarding slavery.
Today, things seem to be progressing at a different pace than the past. Just a few days ago, in an address to the Italian Committee on Bioethics, Pope Francis reminded us that "the ecclesial community and civil society meet and are called to cooperate, in accordance to their distinct skills." As I have written elsewhere, the Church has a unique role to play in combatting human trafficking. This crime knows no geographical boundaries. Therefore, where some governmental organizations are limited by geo-political realities, the Church has the ability to transcend these borders. Moreover, the Church is so often found working with the most marginalized people throughout the world. It is here that human trafficking flourishes. Consequently, the Church and its many affiliated organizations can be essential in both learning information about the manifestations of this most adaptable form of human exploitation, as well as responding to its victims most authentically. This work is exponentially more effective when done in partnership with other aspects of civil and government society.
It is no wonder, then, that the Church and others working in this area have recently highlighted a particular aspect of human trafficking. In a year in which there has been much discussion of refugees and conflict, the Church and other authorities have independently verified the human trafficking that is flourishing in areas of conflict. In November 2015, the Network of Christian Organizations Against Trafficking in Human Beings (COATNET) met in Paris to discuss the fight against human trafficking. Relying on research from Secours Catholic Caritas France, COATNET members recognized the many manifestations of human trafficking that arise out of conflict. As Caritas noted,
[w]hile some of the forms of exploitation…are specific to countries involved in direct conflict – child soldiering and organ trafficking to treat wounded fighters – the remaining types of trafficking in human beings have many points in common in conflict and post conflict periods."
Among the forms of exploitation beyond child soldiering, Caritas' research discussed collateral instances of trafficking. These include early and forced marriages for the purpose of sexual slavery – sometimes facilitated by kidnapping, but other times by families incorrectly believing that a child marriage may be a way for the child to escape exploitation of conflict. Caritas also shared in this research the reality of economic exploitation in a grey labor market by refugees fleeing conflict but unable to secure positions in the legal labor market. Not only do these regional Catholic organizations observe these phenomena throughout the world and inform our understanding of the forms of exploitation occurring on the ground, but they also confirm what they have labelled a "protection gap." That is to say, they note that identification and protection of victims is not considered and implemented during an emergency response to a conflict or refugee crisis.
This research was echoed by the State Department's recent release of its fact sheet entitled "Modern Slavery as a Tactic in Armed Conflict." Here, the State Department focuses on armed groups in Syria and Iraq utilizing modern slavery not as a consequence of conflict but, rather, as an actual tactic. Interestingly, each report analyzes how human trafficking in areas of conflict exceeds child soldiering. Both the State Department and Caritas discuss that the slavery of women and children as a particularly devastating technique to effectuate domination of vulnerable civilians.
Women and children in armed conflicts are particularly vulnerable to multiple abuses, including those involving human trafficking and sexual and gender-based violence.
The use of modern slavery as a tactic in the armed conflicts in Iraq and Syria is particularly alarming. The Islamic State of Iraq and the Levant (ISIL), as well as other armed groups and militias, continue to intimidate populations and devastate communities through unconscionable violence, fear, and oppression. ISIL has made the targeting of women and children, particularly from Yezidi and other minority groups, a hallmark of its campaign of atrocities. In the past year, ISIL has abducted, systematically raped, and abused thousands of women and children, some as young as 8 years of age. Many of the horrific human rights abuses that ISIL has engaged in also amount to human trafficking. Women and children are sold and enslaved, distributed to ISIL fighters as spoils of war, forced into marriage and domestic servitude, or subjected to horrific physical and sexual abuse. ISIL has established "markets" where women and children are sold with price tags attached and has published a list of rules on how to treat female slaves once captured.
The observations of the State Department are in sync with and informed by those religious organizations working with these populations throughout the world. Much like in the 19th Century, the faithful are called upon to respond to modern slavery. The battles against this injustice and indignity are challenging ones. However, opposition is one made all the stronger when religious institutions and actors embrace their opportunity to combat it and work with civil society to eradicate it.
Friday, October 30, 2015
The above is the title of a piece in last month's National Law Journal that is worth a read. Written to coincide with the Pope's visit, I myself missed it in the deluge of press coverage. However, especially after Pope Francis's historic address to Congress and the craze with which politicians tried to reap professional benefit from his visit, the article is worth review.
Marcia Coyle documents the 11 cases in which the pope was mentioned in oral argument during the last 60 years. While some are expected cases regarding the establishment clause in Lynch v. Donnelly and the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, others were far more surprising. The pope has been used in several hypotheticals by the justices, well before it experienced its majority Catholic representation. Even a solicitor general quoted Rerum Novarum and Mater et Magistra in an NLRB dispute with the Bishop of Chicago.
As the discussion of the appropriate role of the pope in the world percolates in the wake of Francis' visit, the piece is worth a fresh read.
Thursday, October 8, 2015
"The great act of faith is when a man decides he is not God."
-Oliver Wendell Holmes
This past Sunday the Archdiocese of Washington celebrated its annual Red Mass at St. Matthew's Cathedral in our nation's capital. While many dioceses and universities celebrate this mass which seeks to "to invoke God’s blessings on those responsible for the administration of justice as well as on all public officials" the mass in Washington has some unique characteristics. Held annually on the Sunday before the first Monday in October when the Supreme Court begins its term, the mass attracts some of the leading jurists and public officials in the nation (although Slate noted only 4 Supreme Court Justices attended this year, trying to connect that observation to Pope fatigue).
Archbishop Wilton Gregory delivered the homily and his sermon touched on language, faith, and humility. In my own legal scholarship, I have written repeatedly about the importance of accurate labels and precision in the language of legal discourse. The choice of terms matter greatly as terms and labels convey social values which then influence the criminal law (think about terms such as "kiddie porn" vs. "images of child sexual abuse" or "child prostitute" vs. "sex trafficking victim"). Therefore, I found myself particularly struck by Archbishop Gregory's emphasis on language.
As the Catholic Standard reported, Archbishop Gregory noted that “[i]t is the mission of those involved in the administration of justice to help us all to understand the meaning of the words of the law and their consequence for the common good that flow from those laws. Yours is the noble vocation of choosing words and helping us understand the meaning of those words that are intended to safeguard and unite our country.” In a world of soundbites, legislative proposals with catchy names, and loose terms such as "non-dangerous drug offender," "victimless crime," and "revenge porn," the devil is in the details. Lawyers, judges, and legislators would do well to take a critical look at language they use, constantly asking what that language conveys about societal values and the seriousness of criminal victimization.
Archbishop Gregory offered other insights and practical guidance to legislators and judicial officials, many of which apply to all of us. But citing to the above Oliver Wendell Holmes quote, he reminded a Cathedral full of Washington luminaries (not to mention those of us sitting in the legal academy seating) of the value of humility. Underscoring the danger of using language to both contravene God's plan for us as well as in a "search to become gods" ourselves, the homily reflected a little of what Pope Francis was attempting to display during his visit - humility. Here's to hoping that message was received.
Thursday, September 24, 2015
Listen. Not simply "hear," but listen.
Washington is a town that has mastered the skill of not only hearing what a speaker is saying but simultaneously processing the statements in a uniquely Washington way. Inside the beltway they seem to sort incoming information not for understanding but for separation into two categories: that with which they agree and that to which they oppose. Our politicians take it a step further. Not only do they sort the information, but as the person is actually still speaking politicians scan the statements creating arguments to attack or adopt the statements, depending upon whether the speaker is perceived as friend or foe. An open mind is never seriously considered as an option in Washington.
Ever since Pope Francis was selected to lead the Catholic Church and began soaring in public opinion, politicians and special interest groups have tried to hijack the Pope and his popularity to forward their agendas. When he says something that pleases them (for Democrats it might be his call to be stewards of the environment or for Republicans his stance on religious freedom) they embrace it and ride his coattails. When he says something they do not like (for Democrats it might be his rejection of moral relativism or for Republicans his views on the death penalty), they dismiss his statements as simply the views of one man outside his element.
Early on in his papacy the media, political parties, and special interest groups attempted to put Pope Francis into a neat box. When they saw they could not do so, and measured his growing popularity, they then began simply processing his message to spin it to their advantage. They have literally tried to use the Pope.
All the while it never occurred to them that maybe, just maybe, the truth is complicated and not neat; and possibly there is more than one way to look at the complex issues of our time. It never seemed to cross their minds that examining contemporary social problems requires an approach that starts from a place of humility. It further demands thinking a bit like Pope Francis and seeing these problems not through a lens of "spin" but through a lens of a preference for the poor and a recognition of the inherent human dignity of all people – even those with whom one disagrees.
Washington has been fortunate to be on Pope Francis's agenda for his first trip to the United States. Members of Congress, the body charged with governing this nation and actually steering the country through difficult times, should not squander his historic visit. They risk doing so by regarding it as simply an opportunity to hear him speak and boast that they met him. To do so is to equate the Pope with the Beatles and act as though this is 1964. Well, this is 2015 and we have serious moral and geopolitical problems that include numerous wars, a refugee crisis, a poverty crisis, and an environmental crisis. Congress would be wise to take a cue from Pope Francis and follow his suggestion to "choose humility and reject vanity, pride and success."
In short they should put aside the spin and avoid the temptation to use the Pope for their own gain. They should do something very un-Washington: not just hear his words, but listen to them with open hearts and minds.
Sunday, September 20, 2015
As the photo demonstrates, CUA and the Basilica are hard at work preparing to welcome Pope Francis to our campus. Depicted here are the early stages of the altar from which Pope Francis will canonize Fr. Junipero Serra on Wednesday.
Throughout this process, I have been impressed, not only with the physical scaffolding preparing us for the visit, but the spiritual and intellectual scaffolding as well. The city, nation and world, have been invited to "pray,serve,and act" in the WalkWithFrancis program. This outreach invites us not not simply treat Francis's arrival as the 2015 version of the 1964 appearance of the Beatles - i.e. as an event that occurs to "say we were there." Rather, it calls us to a deeper participation in this visit that is meaningful and one that will stay with us far beyond the time Francis departs for Rome.
A unique location of intellectual and insightful scaffolding includes CUA bloggers page, which contains reflection from academics, students, and others selected throughout our community. Of particular interest to MOJ readers may be those of MOJ alumna Lucia Silecchia (Professor of Law and University Vice Provost for Policy).
Friday, September 18, 2015
Catholic University is going to be the hub of activity next week as we host the Pope. Timed perfectly before his visit is an important conference regarding religious freedom.
The Religious Freedom Summit occurs today and is co-sponsored by The Catholic University of America, Baylor University, the Georgetown-Baylor Religious Freedom Project, and the Knights of Columbus. Speakers include our own Mark Rienzi, as well as former congressman Frank Wolf, Sarah Liu, and Judge Ken Starr. Details and follow up information can be found here.
Tuesday, May 19, 2015
This is the subtitle of an important conference going on today through Wednesday in Cincinnati. The Freedom Summit is an effort by Christian churches to come together and discuss important components of today's human trafficking problem. It describes the Summit as follows:
Sponsored largely by the National Underground Railroad Freedom Center, this conference is yet another important example of the role organized religion can play in the movement against human trafficking. Furthermore, it brings into the spotlight the often ignored reality that race plays in human trafficking.
To end this form of exploitation, organizations and individuals must engage in difficult conversations and confront the reality that we all contribute to human trafficking and that we have more people enslaved throughout the world today than at any time in human history. No doubt this conference will contribute to the the national conversation looking to end this exploitation that enslaves millions everyday.
Wednesday, March 4, 2015
This is the title of an important new book available for order this month featuring many of our fellow MOJ bloggers or friends of MOJ. Contributors include Fr. Robert John Araujo, Thomas Berg, John Breen, Robert George, Michael Scaperlanda and many others. Gerard Bradley notes in his foreword that “[t]he moral evaluative perspective which unfolds in succeeding pages illumines, justifies, and critiques America’s laws.” One of my favorite reviews is from Michael Novak who states:
"Precisely because I am not a lawyer, I really liked this book. For an outsider, it provides a crisp guide to the history of American Catholics under American law – a fairly friendly and yet often antagonistic encounter. I hadn’t known that there are 29 Catholic law schools in the United States today...."
The book also features chapters from two of my colleagues here at Catholic University. My colleague, Robert Destro authored a chapter entitled “The Ethics of Lawyers & Judges Perspectives from Catholic Social Teaching." Additionally, my colleague Lucia Silecchia authored "The Call to Stewardship: A Catholic Perspective on Environmental Responsibility."
From the publisher: "Here readers will find probing arguments that bring the critical perspective of Catholic social thought to bear on American legal jurisprudence."
Friday, February 6, 2015
Last term, the Supreme Court reversed a restitution award for a victim of child sexual abuse images (a.k.a. child pornography) and ruled in Paroline v. United States, that this victim could not receive mandatory restitution under 18 U.S.C. 2259. In Paroline, the defendant was a possessor of the images. Although the Court recognized that “[i]t would be inconsistent …to apply the statute in a way that leaves offenders with the mistaken impression that child-pornography possession (at least where the images are in wide circulation) is a victimless crime,” the Court ruled that the victim would have to establish that the possessor was a proximate cause of her harm. So, somewhat paradoxically, the Court recognized the harm caused by possessors, but applied a nearly impossible and unworkable standard for victims to actually receive restitution for that harm. (It should be noted that in doing so the Court was not alone, but other lower courts required proximate cause as well.)
While a blow to the ability of victims of child sexual abuse images to be able to recover from this pernicious exploitation, the decision sparked legislative actions. Yesterday, the Amy and Vicky Child Pornography Restitution Act passed 19-0 in the Senate Judiciary Committee. Not only is the Act a step forward for victims. It also represents a refreshing change in Congress working together for what is inherently good, as it is sponsored by Orin Hatch and Charles Schumer, among others.