The Missing Americans Project

Looking for People and Answers

First, I want to thank everyone who reached out to Sen. Lautenberg and Sen. Menendez today. You all made a real impact. 

 

I want to explain the issue at hand. Here is the link to the relevant legislative language, which the State Department invokes whenever they tell us they "cannot give"  or "are prohibited by law from giving" my family a consular finding of presumptive death. Please make sure you read it so you understand the issues.

 

http://www.state.gov/documents/organization/86584.pdf

 

The State Department and certain of our legislators' aides like to frame this discussion as the Dunsavages looking for an exception to what is legally required by law. The State Department says it "can not " provide a consular finding of presumptive death unless we go through the Honduran court system. If you read the law, you will see that it says nothing of the kind.

 

The law says flat out that it " explicitly authorizes a consular officer to issue a report of presumptive death in the absence of a finding of death by the appropriate local authorities." It does go on to say that the provision is "intended" for "exceptional circumstances where the evidence that the individual has died...is persuasive, but local authorities have not issued and are not likely to issue a finding of death." Now, no one can reasonably opine on the "likelihood" of the Honduran courts providing a finding. The only case I know of in which a family did go through this process resulted in the family paying legal fees for five years before their Honduran lawyers disappeared. One legislative aide dismissed my concern about this, saying, "every case is different and must be judged on its own merits." That's easy to say if you are not the one putting your money at risk after spending your life's savings on an international search/rescue operation and private investigation.

 

I believe any reasonable person would agree that our concerns are well founded. Further, what sense does it make to authorize State to provide a finding if the Honduran courts don't give us one? Whose interests are served by putting my family or any family through this hell? The aide insists that the goal of this law is to "prevent fraud." Well, fraud is not mentioned anywhere in the legislative language -- and though it is a legitimate concern, a simple review of all the evidence would eliminate it. And how on earth is the Honduran court system going to determine whether fraud has occurred? Based on what criteria? What information do the Hondurans have that the State Department does not? The requirement is nonsensical, and, in fact, is not a requirement, as further review of the legislative language shows.

Specified circumstances in which a consular finding might be provided include

:
" disappearance/death at sea, or other sudden disaster where the body is not immediately (or perhaps ever) recoverable."


The legislative language goes on to say:


"The Department's decision whether to issue a Report of Presumptive Death is discretionary, and will be based on the totality of circumstances in each particular case."


"Discretionary" = "up to Department's own judgment"

"Based on the totality of circumstances in each particular case" -- I would argue that the circumstances in our case are compellingly strong.

 

We know Joe entered the water at Roatan, but we have no idea where he died: in Honduran waters, Guatemalan waters, Belizean waters, Mexican waters, or international waters. All of these are equally likely. The U.S. military searched all of these areas, and local experts believe Joe most likely would have been drifting either toward Belize or Mexico.  As a matter of practice, the State Department appears to default to the last country in which the person was seen, but this is completely arbitrary and not supported by the legislative language.

 

For all of these reasons, I believe it is clear that the law, far from binding the State Department's hands, gives it wide latitude to make a decision based on the evidence. In fact, all of the language refers to what State "is authorized" or "may" do...the only place where the words "may not" or "must" appear is the following:


"A consular report of presumptive death may not be issued without the Department's authorization, which must be approved by the Managing Director of CA/OCS."


So, in a nutshell, the State Department's position on this issue is unreasonable, inhumane, and not supported by the very law State invokes in taking the position. If the senators would read the law and cared to help us, they would see this. Likewise, if the national media would report on this, people would see the unfairness and inconsistency and become outraged. So, I'm hoping to get the senators on record as agreeing or disagreeing with State's interpretation. That's the only way we will know if they are truly with us or against us.

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Comment by Jeff Dunsavage on February 21, 2011 at 12:16am
Maureen: You're right to think of the larger picture. I'd not thought so much in terms of defining the term "missing" as updating the way State think of the term "U.S. interests" -- our State Department is still operating on 18th/19th century assumptions. Its policies were formed when the only U.S. citizens who traveled outside our borders, except perhaps for Europe, were diplomats, businesspeople, or missionaries. Most families had few assets or investments, and even life insurance was a rarity -- so to lose someone abroad was not very much different from having them drown and not being able to find the body. Either way, it was nothing more than a devastating personal tragedy. Today, far more U.S. citizens live, work, and vacation abroad, creating a compelling state interest in how things are handled when citizens get into trouble (just as when a U.S. corporation's interests abroad are threatened). Circumstances have changed, but policies haven't - and they need to.

I honestly have not thought enough about the situations of families who lose loved one in this country. I'm going to have to as more of those families join our efforts. We're all in this together.
Comment by Maureen Reintjes on February 18, 2011 at 11:25pm
I know you are looking for an outcome of a ruling for consular finding of presumptive death .... but I see what you are doing in an even larger picture.  ... "the State Department's position on this issue is unreasonable, inhumane, and not supported by the very law State invokes in taking the position."  I think that if you are able to get the Senators on record then it would finally be a way to force them to define the very word "missing."  And, in defining that word they would have to rule that families of the missing are victims too and should have rights that protect them legally and financially.  This is huge for both the families of the missing whose loved ones are missing in the US and for those US citizens missing in foriegn countries!  When even one US citizen is missing for whatever reason, for wherever they may be missing from it should be the concern of all.  In the US the families hear too often the words "not our jurisdiction" when they try to escalate their cases ...... 100,000 missing ..... someone high up the ladder had better consider it their jurisdiction.

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