May 20, 2011
CCAI Report on Guatemala Trip
CCAI issued it's report on the trip to Guatemala. A very interesting read that backs up much of my opinion/explanation of the Senator vs Cicig. Also, interesting to see how UNICEF's dollars continue to directly impact adoption.
You can read the report here:
Posted by Kevin at May 20, 2011 08:52 AM
Landrieu's comments with about 48 hours on the ground are amazingly insensitive to those who have committed their lives (sometimes risking their lives) to the defense of human rights. Anyone who wants to see a Guatemalan's response to Landrieu's comments, see Norma Cruz's open letter to Landrieu. It is available at the PEAR website: http://pear-now.blogspot.com/
Finally, I will say this again--Landrieu put relations between USA-Guatemala and creating common grounds on the pipeline cases at risk. Until we are ready to recognize that there is a standing request for DNA tests on at least three little girls and that the USA is stonewalling--why should we expect collaboration and cooperation on the Guate end? Let's think critically and act with integrity.
I have only heard of 1 case with a request for a DNA test. Is there info /news reports on the other 2? Do you really think that this is why Guatemala is not processing the pipeline cases? If so, how is it acting with integrity to hold the lives of several hundred children as hostage for questions in 3 cases (out of thousands). I agree that Sen Landrieu has done much more harm than good and that her comments were both insenstive and ill-advised. But I think it's overly simplistic to say that the lack of collaboration and cooperation on the Guate side is due to the requested DNA tests.
You are correct in that Landrieu's remarks are not the ONLY reason for problems with moving these cases along, but she irritated an already difficult situation. To stand upon the grounds of "prosecute" the criminals and then ignore the three DNA test requests that were made by the GUA government--that is beyond irresponsible. And yes, her remarks to the PRENSA LIBRE were about prosecuting criminals. Arrogance and ignorance is the only word to describe her remarks. And, anyone who thinks that she is a help rather than a hurt--well, get your head out of the sand! Ignoring formal requests for criminal investigation is not acceptable and then for a Senator to throw around her comments in such an uninformed manner. Well, that is not any kind of advocacy that I would want! I don't typically buy into the 'imperialism' criticism of intercountry adoption, but with this sort of behavior it is hard to argue against it.
I discussed Guatemala's request that adoptees be DNA tested when kidnapping was suspected with an attorney back when these first cases broke news. The attorney said that under US law a person could only be forced to provide a DNA sample if there was ample evidence that the person had committed a very serious crime, such as murder. These adoptees did not commit any crimes. I'll try to remember to ask an attorney for more details about how the law works and the potential implications if the government (I'd imagine that it would be the executive branch) were to force DNA tests for individuals (the adoptees) who have not committed a crime.
I don't think this (not forcing DNA testing of the adoptees in question) is a simple question of the US government stonewalling. I think it is much more complicated than that. Hope I'm being clear in what I'm saying.
Kindest Regards, Cheryl
I have several times read posts that seem to indicate that people think the US government is in the position to force the APs to provide DNA tests of Karen/Anyeli. I suspected that this was no simple matter so I discussed this with an attorney friend of mine. This friend does not specialize in this type of law so could not give absolute definitive answers but still his knowledge of law helped to shine some light on this subject.
The executive branch is the first point of contact when two countries have a dispute, such as requesting that Karen/Anyeli be DNA tested. However, the executive branch is not in a position to force this to happen. Second, there have to be laws in place for requiring a DNA test in this kind of situation. If there are laws in place, then the next step is to go through the judicial system. The APs of course could appeal decisions for quite awhile if the decision was not in their favor. If there are no laws in place for requiring a DAN test in this kind of situation, then laws would have to be passed before it could be pursued any further.
This has been going on for years. So there are two possibilities here. Either there are no laws that provide for this or they are in court.
There is no mechanism for making this kind of thing happen quickly. And definitely no mechanism for the executive branch to force this to happen.
I also asked my friend if the APs side may challenge the constitutionality of forcing them to submit Anyeli/Karen to a DNA test. He said I could definitely envision these types of argumetns being made.
Does any one know whether there are laws that provide for forcing a DNA test in this kind of situation? Does any one know if this has gone to court?
It seems to me that most of us simply do not have very much information about this case.
Kindest Regards, Cheryl
With all due respect, this is NOT ABOUT ADOPTEES being guilty of anything. This is about them being abducted/kidnapped. When a foreign government needs evidence for investigation/law enforcement, there are agreements in place about international law enforcement. Further, both nations have signed the Hague Convention and thus they are supposed to collaborate when there is a suspicion of child sales and abduction. You can get $5 advice from a lawyer on this, but ultimately the US Department of Justice very specifically and the US Department of State are stonewalling here. The DOJ has taken the position that there is not enough evidence to legally require the tests. That is the oldest argument in the book and it is the same argument that allowed Guatemala to remain open for 2-3 years longer than most other civilized receiving nations. Smoke and mirrors!
I never said that this was about adoptees being guilty of anything. Since no one has spoken to how this works in an international situation, I was trying to extrapolate how this works.
I'm still curious about this and you seem to know how this works.
Do you know what level of evidence the US requires for a DNA test for this type of international incident?
When you say that the US decided there wasn't enough evidence, do you mean that this went to court here and the courts ruled this? If it isn't the courts, who rules on this?
I'm surprised that the US would say there isn't enough evidence for the Anyeli case because of the DNA test that is in the "Karen" file in Guatemala.
The Guatemalan Government made a formal/official request of our Dept of Justice for the DNA tests. The DOJ has determined that there is a lack of sufficient evidence to do so. It is that simple. This is impunity--a failure of law enforcement to respond to allegations of crime. The impunity is pretty clear in Guatemala, but the DOJ has now become a part of the problem too. And, Landrieu's failure to intercede--even when requested to do so also makes her complicit--no matter how high minded she is in her public statements about prosecuting the criminals. Cheryl: You should follow the starvation protests by Norma Cruz and the mothers with Sobrevivientes. I expect that they will once again go on hunger protest.
With all due respect, I have followed the starvation protests. With all due respect, following the starvation protests does not give me information about how the process works. With all due respect, there is still a lot about the process that I do not know.
Kindest Regards, Cheryl
"The Guatemalan Government made a formal/official request of our Dept of Justice for the DNA tests. The DOJ has determined that there is a lack of sufficient evidence to do so. "
How do you know that this is fact? I mean, where did you hear it/read about it? Thanks.
I have done some more reading on international law. There are different types of international law. For example, private international law pertains to which jursidiction may hear the case and the law concerning which jurisdiction applies to the issue in the case. Then there is supranational which means the laws of the nation states are held inapplicable when conflicting with a supranational legal system.
I suspect that these requests for DNA testing fall under private international law, that the jurisdiction that was selected was a US jurisdiction and therefore US case law was used in determining whether it was legal to force the DNA testing. If any one knows better, please post.
Assuming that this situation falls under private international law and based on my discussions with attorneys, the US's "burden of proof" for forcing a DNA test is very high. If any one knows something different, I would like to know.
More specifically when referring to the Anyeli/Karen case, the US's "burden of proof" would reqire that there is a lot of proof that Karen is Anyeli and that she was kidnapped.
I'm not saying that this is all that there is to why the DOJ decided to not force the DNA tests. But it helps to understand the process.
I suspect that the outcome would have been different if Karen/Anyli were say for exmaple in Austrialia where the laws concerning these matters are quite different.
Hope I'm being clear.
Again, if someone knows that things work differently, I would be interseted in knowing.
Kindest Regards, CHeryl
Alexandra, Karenms1, Shyrel,and Marie,
Cheryl asked, in the previous string, about what evidence you had that the US Embassy is participating in corruption. I am also interested in what you know about this. I have heard about, (and Kevin also spoke about)their inaction once they were notified of problems. Do you have more details/more evidence of their participation?
Cheryl also asked in the previous thread, if the fake birthmother of Anyeli was searched for, found and questioned, and if not, why not. I would also like to ask, if she WAS found and questioned, what was her explanation for presenting a child that was not hers, but was a close relative of hers? I would also like to ask, was Loyda Rodriguez asked (since the fake birthmother of Anyeli was shown by DNA test to be a close relative of Anyeli, thereby also being a close relative of Loyda)about the woman in the DNA photo, about her true identity (which Loyda surely must know)?
Are you suggesting that the 915 missing kidnapped children were all adopted? If so, what evidence have you found to suggest that they were adopted as opposed to another explanation for the children being missing?
Why would Susana have tried so hard to get the US family (who adopted Karen and who Loyda believes is Anyeli)to do a new DNA test on the child that they adopted, if it would implicate herself?
a new anonymous
I am not sure how to respond to anonymous about the questions, except to say that 'smoke and mirrors' and thank goodness there is finally some law enforcement when it comes to the allegations surrounding Luaraca. I am sure that she too is interested in getting her day in court. I am also sure that she is shocked to see the inside of a Guatemalan prison.
My questions were in search of factual information. If you do not have the factual information, that is ok, but I am not interested in mean-spitited opinions about how you support people in Guatemala sitting for years in jail without a trial. The director of Primavera has been in jail for over 2 1/2 years now without a trial. Susana has two small children who need their mother.
You often speak of your experience and knowlege about Guatemala. You speak as though you have inside information. You and others speak about how AP's should better educate themselves about adoptions in Guatemala and the corruption that occurred. That is why you get our questions.
If you do not want the tough questions, or can not answer them, stop speaking as an expert, and then we can direct our important questions to someone else. I for one, want only accurate and factual information. I have tried to remove my feelings and opinions out of my posts and to speak in a respectful way.
Many acusatory opinions are offered here, not many are backed by credible sources or facts. Some sources have been cited here, that I know to contain untruthful information.
Other accusations have been made here that I suspect are true, and always have believed are true, but again are not backed up with factual information and believeable, reliable sources. One example is Alexandria's post about corruption at the US Embassy. I have always believed that, but have no information to back it up. Those of us who are citizens should be armed with this info so we can effectively speak to those who represent us. We can not speak out armed only with someone's opinion. Same with the whole DNA testing deal that Cheryl and Liz asked about. We are powerless when speaking to our representatives without factual information.
Saying things like "smoke and mirrors" over and over, and "5 dollar lawyer" and "with all due respect" and "I'm sure she is shocked to see the inside of a prison" are all UNPRODUCTIVE to help to better inform AP's.
Another post belittled AP's for not being able to speak Spanish. First of all, some of our adoptive children's birthparents spoke other languages other than Spanish. Second of all, some of us are better at learning things like a second language than others, we all have things that we are good at and things we are not good at. Just because we are not good at speaking Spanish, or even if we have not tried to learn Spanish, does not automatically mean that we are uninformed or uncaring, or disrespectful of Guatemala and its culture.
Again, this type of comments shuts down communication instead of opening up more communication. If AP's are to continue to be more informed, communication needs to be expanded, not restricted due to AP's not wanting to be verbally attacked for asking questions. Why do you think I posted anonymously???????
I want to benefit from the knowledge of persons like Karen, Alexandria, Shyrel, Marie, Kevin, Hannah, Henry, Cheryl, Jennifer, SJBJ, on and on. I do not want to see people attacked for asking questions, or be attacked myself.
a new anonymous
I have done some thinking and I think I can do a better job of presenting my thoughts.
I think, and I imagine that almost everyone would agree, that we will be more able to change things for the better if we understand how the process works now and the historical reasons for why it works this way. The changes that we advocate will probably have to work in some fashion within the existing framework.
I keep hearing that the international law specifies that nations are supposed to "work with each other" in the event of a suspected kidnapping. This is very vague and leaves lots of wiggle room.
Based on my reading, there are several different types of international law. One of them is supranational law that supercedes each nation's own laws. I suspect that when people hear "international law" they assume that all international law is of this type. However, that is incorrect. There is another type of international law called "private international law." Private international law pertains to which jurisdiction may hear the case and which jurisdiction applies to the issue in the case.
I strongly suspect that this question of forcing the APs to DNA test Karen falls under private international law. For exampel, one senses that the US and Guatemala are jocking with each other for being the chosen jurisdiction. Also the vagueness of the international law "work with each other."
With respect to the Anyeli/Karen case, the two possible jurisdictions are Guatemala and the US. Guatemala is saying "hey send us the DNA results and we will try it down here according to our laws." The US is saying "no no, there isn't enough evidence to meet our standards for burden of proof. So we can't provide the results. This would be illegal according to our laws as they stand today."
It has been said that the department of justice has turned this request down. The department of justice (DOJ) is a part of the executive branch. This is the first point of contact when nations dispute these kinds of things.
However, as you remember from your classes on government, we have 3 branches. The legislature that passes laws, the judicial branch that intrprets the laws, and the executive branch that executes the laws.
The executive branch's powers to "force things to happen" is very limited because the US government was designed with checks and balances. For example, the President may declare war but Congress has to approve it. So I strongly suspect the DOJ cannot force the DNA tests to happen.
Instead, I strongly suspect, that this would have to be presented to a judge in the judicial system. The judge would first look over the case to see if it meets the burden of proof according to US law. If it meets the burden of proof, then it would go to trial and it would be tried according to US law.
Now Guatemala can say that isn't fair. We should be the jurisidction where this is tried and according to our laws because we submit "with all due respect" that the crime was committed here.
But the kids in question are in the US and there is no mechanism in place to make Guatemala's wishes come true.
So assuming I figured this out correctly, what is the next step?
I suspect that new laws have to be passed in the US to make this kind of thing easier. I suspect that the laws currently on the books were not drafted with this kind of thing in mind. They didn't envision this.
Another thing I would think should happen is that Guatemala should design their new adoption system with these kinds of legal matters in mind (other nation's legal standards, their burden of proof, etc...) And I think a big part of that is a DNA data base that has the DNA profile of each and every child that is adopted from that country.
Hope I'm being clear in what I'm saying.
Kindest Regards, Cheryl
PS The phrase "all due respect" is a way of giving someone respect when you disagree with them.
I'd like to add some thoughts to people's comments about the US embassy.
When these problems with false DNA reports started to surface, one of the proposed changes was to do the DNA tests at the US embassy. I wish you were here with me becasue I'm laughing hysterically.
Any one in engineering knows that when you assume that something is bullet proof, it becomes one of your main weaknesses. Now even if the US embassy were totally above board now, one cannot assume that it always would be. It seems to me, that all it would take is to bribe the person that is determining which queue your case goes into. That doesn't take a whole lot does it?
So if you want ethical adoptions, lets think a little harder about this one.
@ a new anonymous. I couldn't agree more. Thank you for your post.
I have a few other thoughts about children being kidnapped and then internationally adopted.
A long time ago, Law Professor Smolin said that the legal standard for determining the home of a kidnapped child that is internationally adopted is "best interest of the child." BTW that is also the standard in custody battles involving divorce.
On the one hand, "best interest of the child" makes sense. Of course the child's intersts should be considered above that of the either set of parents since the child more than any one else is the victim, has the least amount of power, the least amount of coping skills etc. And as adults, it is our responsibility to protect children.
However, as can be seen, "best interst of the child" is a very murky standard that leaves lots of wiggle room. In some ways that may be good so that all factors can be considered without being backed into unnecessary corners by factors that end up not really applying to a particular case but in others it is bad. How does one determine what "best interest of the child" is?
Professor Smolin stated that factors in determing the child's best interest are how old the child was when the kidnapping occured, how difficult it would be for the child to readjust back to the biological family. I think he also included who does the child consider to be his/her parents and where does the child consider to be their home.
From this, one can see that if a child was kidnapped a long time ago at a young age, there is little hope for the biological parents to get their child back.
I have a feeling that "best interest of the child" will always be the standard for determining which set of people will raise the child.
This makes it imperative that strong measures be taken to prevent these things from happening in the first place, catching them before the child crosses the border and before the child has spent a lot of time with the adoptive family.
Kindest Regards, Cheryl
In the US, "best interest of the child," is also the standard that is used in cases involving a child that was switched at birth, for example, at the hospital. One might think that when children are switched at birth at the hospital, when the switch is discovered, the children are automatically placed back with their biological parents. I have learned that that is not the case.
Kindest Regards, Cheryl