The State Department is accustomed to complaints about its inability to do more for citizens trapped in difficult situations overseas. Americans get arrested, are caught up in civil unrest or become victims of terrorism, police abuse and kidnapping. But now some of those complaints about State's lack of support for citizens in distress are coming from within the ranks of the department itself.
Take Thomas A. Johnson, who has spent much of his career as a Foreign Service officer dealing with human rights issues. He has served as legal adviser to U.S. delegations at nine sessions of the U.N. Human Rights Commission in Geneva and has been involved in more than a dozen bilateral and multilateral negotiations on human rights matters, including the International Convention on the Rights of the Child.
What was once mainly a professional issue has now turned deeply personal for Johnson, who is prodding the department to pay more heed to the tragedy that has befallen him: the abduction of his daughter, now 13, to Sweden by her Swedish-born mother five years ago. As Johnson sees it, under the terms of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Sweden should have returned his daughter, Amanda, years ago, and the State Department should have been pushing Swedish authorities much harder to get her back.
Challenging the establishment does not come naturally to the Illinois native, who has been an attorney with the State Department since 1979 and is a recipient of the department's superior honor award. He also retired recently from the Marine Corps Reserve after 33 years of service.
Yet Johnson, the lead lawyer for the Bureau of Population, Refugees and Migration, makes no secret of his disdain for the Consular Affairs Bureau three floors above his State Department office ("We are not on speaking terms.") and other government agencies involved in his case. In October 1999 testimony before the House International Relations Committee, Johnson railed against the "dereliction of duty" of government officials, and their "incompetence, inexperience and mismanagement."
Spouses in such situations often spend exorbitant sums in a futile effort to retrieve their children. Since Amanda's abduction in 1995, Johnson has spent savings totaling about $200,000 on his case. All he has to show for his efforts are a few supervised visits with Amanda in Sweden. Meanwhile, his ex-wife has experienced no comparable financial drain in fending off Johnson because, he says, the Swedish government has picked up her legal expenses.
Johnson has since remarried, adopted two children and fathered another. It pains him that Amanda has siblings in the United States whom she has never seen.
Sweden maintains it has fulfilled its treaty obligations. Sweden's Supreme Administrative Court said that by the time it took up Amanda's case, two years after she had been abducted, she had become a "habitual resident" of Sweden. As Sweden see it, this satisfied a key criterion of the Hague Convention.
Tom Sylvester, of Cincinnati, understands what Johnson has been going through. His wife fled with their child, Carina, to her native Austria on Oct. 30, 1995, when Carina was just 13 months old. Sylvester seemed to have won his case for custody when an Austrian court ordered not long after the abduction that Carina be returned to the United States. The order was upheld by the Austrian Supreme Court on May 7, 1996, six months after the abduction.
When the authorities turned up at Carina's house to enforce the order days later, the grandmother slipped out the back door with the child in her arms, Sylvester said in congressional testimony. There was no further attempt to enforce the order. Thereafter, Sylvester said, Carina's mother used "every possible legal maneuver imaginable" to counter his custody demands. Eventually, he said, she got the same Austrian Supreme Court which had voted against her before to rule that it was in the child's best interest to remain in Austria because she had assimilated into Austrian society.
Circular Logic
Marvin Weiss, a spokesman at the Austrian Embassy, explains that the court took into account psychological evaluations that it would be "gravely damaging" to the child for her to be uprooted and returned to her father.
Sylvester observes, "This situation is best described as circular logic. The child has not been returned because the order was not enforced and now the order will not be enforced because the child was not returned."
His frustration is understandable. His daughter was taken from him in her infancy; since then, he has had only three brief supervised visits with her. He has even thought about going to Austria and retrieving her himself but was told by U.S. authorities that he would be subject to extradition to Austria to face criminal charges if he did so. This leads him to conclude that U.S. officials are more interested in maintaining close ties with Austria than in enforcing the Hague Convention.
The Role of Publicity
One of the best-known examples of this sort of miscarriage of justice involves Joseph Cooke, a New Yorker whose German-born wife fled with their two children to her homeland seven years ago. Suffering from depression, his wife placed them in a foster home soon thereafter without his knowledge. In 1995, a German court ruled that the children had already bonded with their foster family and would suffer "severe psychological loss" if separated from them.
Until Cooke's plight was chronicled in The Washington Post last May, the German government had pursued a hands-off policy towards custody disputes involving German and American parents, preferring to leave jurisdiction to the court system.
That policy underwent a reassessment after publication of the Post article and drew the attention of the Clinton administration as well. German Foreign Minister Joschka Fischer admitted he was "deeply impressed" by Cooke's situation. Adding to the pressure, Secretary of State Madeleine Albright raised the issue with Fischer and President Clinton discussed it with German Chancellor Gerhard Schršder. Subsequently, a German-U.S. commission was set up to examine custody disputes involving nationals of the two countries. In addition, the German government has pledged to arrange for Cooke to visit his two children, now 10 and 9. (Until now, only Cooke's mother, Patricia, has had visitation rights, and they have been severely restricted.)
But even before Cooke's case made the headlines, the seven-month custody battle over a Cuban boy, Elian Gonzalez, had begun to increase public awareness of international child custody issues. Ten weeks after the Cuban boy's rescue in waters off the Florida coast last November, State Department spokesman James P. Rubin said a U.S. government failure to implement the U.S. Immigration and Naturalization Service order for Elian's return to his father in Havana could "seriously jeopardize" department efforts on behalf of abducted American children.
In a court brief filed in the case, Mary Ryan, the department's top consular affairs official, said, "Because other countries carefully scrutinize the practices of the United States, our credibility and effectiveness depend upon our ability to adhere to the principles we espouse." Those concerns were eased when the Supreme Court allowed the boy to return to Cuba with his father in late June, over the protests of his Miami relatives.
Johnson believes there are some similarities between the Elian Gonzalez case and cases involving American children abducted to Europe. The Miami Cubans, for the most part, believe that Elian would be "better off" living in a free country. According to Johnson, Europeans' feelings about the U.S. are comparable to the way Miami Cubans regard Cuba.
"It's hard to exaggerate European disdain for the United States," Johnson says. "They look at us and say this is a violent, drug-ridden society with the worst schools in the industrial world with automatic weapons on the playground."
A parent who wants to retrieve a child abducted to Sweden "is perceived as a criminal" simply because the parent wants to take the child out of Sweden, he says. It matters little, he adds, what court orders have been violated, especially if the violator is the Swedish mother. "Swedish culture says that all children would be better off in Sweden and certainly ones that belong to Swedish mothers," Johnson says.
Bound By Convention
So what is the State Department doing on behalf of the thousands of American parents like Johnson and Sylvester who suddenly are separated from their children?
State's actions in all such cases are governed by the Hague Convention, which the U.S. ratified in 1988. This agreement requires signatory countries to "secure the prompt return of children wrongfully removed to or retained in" another member country and "to ensure that rights of custody are effectively respected." It also specifies that the child be returned to the country of "habitual residence."
Towards that end, State assists American parents in filing applications for the return of abducted children with foreign governments and it attempts to locate, visit and report on such children's welfare. It also keeps "left-behind" parents informed of developments such as judicial or administrative proceedings.
Currently, State says it has files on more than 1,100 open international child abduction cases involving Americans. (Congressional investigators estimate that the overall number of such cases is around 10,000; presumably, many of the "missing" cases represent parents who do not seek U.S. government assistance in recovering their children.)
Mary Marshall, director of the Office of Children's Issues in the Consular Affairs Bureau, contends that over the past decade, the bureau has become far more proactive in its efforts on behalf of left-behind parents. She points out that the staffing in her office has doubled since late 1998 and further increases are planned. "We are doing more and more," she says.
Still, some officials in CA say the wrath of parents like Johnson and Sylvester toward the bureau is understandable. "I think any parent who is denied access to their child is going to say that we are not doing enough," says one official. "They always think we can do more."
Marshall does not disagree that there is room for improvement, and the General Accounting Office concurs with that assessment. The GAO, the investigative arm of Congress, said in a report in late March that left-behind parents need more aggressive advocacy from the State and Justice departments.
The report found there were 2,347 abductions from May 1997 to December 1999 that were looked into by federal authorities. Of this figure, 1,199 cases have been closed. In 503 cases, involving signatories and non-signatories to the Hague Convention, the child was returned to the United States and in 50 cases, the left-behind parent was granted access, the study said.
State did not receive all the blame in the report, to be sure. GAO noted that a 1993 law, the International Parental Crime Kidnapping Act, makes it a federal offense to take a child out of the country in violation of a custody order. The law gives the Justice Department the authority to seek the extradition of abducting parents but it has shown little inclination to use that remedy or to criminally prosecute them at all. During the period covered by the report, DOJ indicted a mere 63 parents and obtained 13 convictions.
The GAO also recommended that the government assist left-behind parents with legal, travel and other expenses related to retrieval efforts.
Should We Play Hardball?
Although State has a high success rate in repatriating foreign children abducted into the United States, when it comes to repatriating abducted American children, it is a different story. In only about 24 percent of the cases are the children returned or do left-behind parents win visitation rights, according to congressional investigators.
Nancy Hammer, of the National Center for Missing and Exploited Children, says the old saw about possession being nine-tenths of the law certainly applies to child custody cases. "The U.S. has always been a leader on issues of child protection," she says. "Historically, we have been doing a good job in sending kids back to their countries of habitual residence. But even if we do the right thing, there is no guarantee that this will inspire others to do the right thing."
Tom Sylvester notes the State Department has repatriated four Austrian children back to their homeland in parental abduction cases in recent years and wonders why it doesn't halt such deportations in view of Austria's policy in his case. "Why not play the reciprocity card?" he asks. "I guess Carina is not important enough."
But the administration disapproves of applying such tactics. "Two wrongs don't make a right," says CA's Mary Marshall. In any case, a shift to a hardball approach would require intervention at the secretary of State level. "We don't do diplomacy in Consular Affairs," notes Marshall.
How Others See State's Record
The inability of the State Department to secure the return of a larger percentage of abducted children has led to a spate of articles on the issue, most of them critical of its performance. A June 1999 article in Insight magazine, a publication of the Washington Times, was titled "State Abandons Kidnapped Kids." A March 1999 article in the same magazine suggested that the department places diplomacy above the needs of American children and their parents. It said some parents who complain to the State Department about lack of progress in their cases are dismissed as "annoyances" by (unnamed) department officials.
Mary Ryan, head of the Consular Affairs Bureau, took exception to the article, arguing that it misled readers into thinking that "State Department officers somehow control the outcome of international parental-child custody disputes. The role of consular officers is to work to ensure the welfare of a U.S. citizen child -- not to provide legal assistance to parents," she wrote. "If a child custody dispute cannot be settled amicably between the parties, it must often be resolved by judicial proceedings in the country where the child is located. We cannot dictate the results of a legal proceeding in another country."
But Johnson believes such statements overlook the need for these countries to comply with the Hague Convention. And he believes that when the State Department takes on abduction cases, it is influenced by competing interests. "Our own government, in general, doesn't like to rock the boat," he says. He believes there are some good people who work the issue but the mindset of State Department desk officers and others is to keep foreign governments happy. "If they are not happy, you're not doing your job," Johnson says. "Your job is to eliminate irritants to the bilateral relationship."
Ray Mabus, a former U.S. ambassador to Saudi Arabia, likewise acknowledges that embassies could do a better job in child abduction cases. "Embassies take pretty good care of Americans who lose their passports overseas," he says. "But if you lose your kids, it's going to be harder than it ought to be to get anybody to listen."
As ambassador, he tried to help Pat Rosh, of San Francisco, whose two daughters had been taken to Saudi Arabia in 1985 by her ex-husband, a Saudi citizen. He fled with the children notwithstanding a court order awarding her custody. Mabus got the Saudis to agree in 1996 to allow her daughters to spend summers living with her in the United States. Just as the deal was about to go through, Mabus left his post and the agreement collapsed. In 1991, Rosh went so far as to hire a Vietnam veteran with a penchant for adventure to kidnap the children and bring them home. But the mission failed.
Melanie al-Mufti, a Muslim American woman from Texas, said her son was spirited off to Egypt by his Egyptian father two years ago. She has had no contact with him despite a court order awarding her sole custody.
The Congressional Front
Three congressional hearings on the abduction issue have been held within the last two years, reflecting growing unhappiness with the State Department as well as with Austria, Germany and Sweden, among others, for not abiding by their Hague commitments.
During a February hearing, Rep. Steve Cheviot, a Cincinatti Republican, asked Secretary of State Madeleine Albright to intercede on Sylvester's behalf. But when the State Department duly asked the Austrian government to revisit the case, Weirs, the Austrian embassy spokesman, responded that "the final word has been spoken. There is no further recourse."
Many in Congress are not inclined to accept such fatalism. Cheviot once mused about "sending in the Marines" to obtain Austria's compliance with the Hague Convention. And Sen. Mike DeWine, an Ohio Republican, notes that, "We go after countries that steal our products or violate patent and copyright laws, but not when they are supporting the theft of American children. What does that say about us as a country?"
Another congressman who has taken a keen interest in the overall issue is Rep. Nicholas Lampson, D-Texas, chairman of the Congressional Missing and Exploited Children's Caucus. He says legislation is needed to assist left-behind American parents. He also favors steps to "embarrass countries into abiding by the Hague Convention."
In an election year, there is no way to predict what form such legislation might take or how effective it might be. What is clear is that American parents whose children are taken away will continue to face a stacked deck, where the abducting parent has the leverage, even when the left-behind parent has a court-approved custody arrangement. And the pressure on the State Department to be more aggressive in assisting U.S. parents will surely grow.
George Gedda, a frequent contributor to the Journal, covers the State Department for the Associated Press.