Why Can't Simple Things Be Easy?

[Jeff Dunsavage]

Some things are complicated, some aren’t – and some simple things become unnecessarily complicated by politics and/or bureaucratic inertia. Over the past year, I have become quite the authority on simple things being made complicated.

In May 2009, my brother Joe Dunsavage disappeared while on vacation on Isla de Roatan, Honduras. We don’t really know what happened apart from the fact that he left the beach to tool around the shallows offshore in a 10-foot-long outboard-powered catamaran and was never seen again. His money and passport were left in the room where he was staying. He had no cellphone, no fishing gear, did not speak Spanish, and his only connection in the region was the small business on Roatan in which he owned a tiny stake. According to the last people to see him he was in good spirits. He spoke with his kids on the phone the morning of his disappearance and told them to tell all the mothers at home happy Mother’s Day. And then he was gone. He may have had engine trouble and gone adrift, perhaps a heart attack. All we know is that neither he nor the little vessel was ever seen again.

Running an international search and rescue operation is complicated – especially when you have never done it before. Terribly expensive, too. No inexperienced individual or family should have to do this. It should be left to the professionals. Unfortunately, when you lose someone at sea outside U.S. borders and ask the U.S. Embassy for help, their response is some version of “What do you want us to do?”
So, we were on our own until we succeeded – through our own networking, research, and pressure from the congresspeople of our extensive family and friends network – in getting U.S. military assets to join our privately funded search. Their involvement came too late to be anything more than a “recovery” (as opposed to “rescue”) effort, but that wasn’t the point. Calls from congresspeople meant the State Department had to do something, so they did something. They called upon the U.S. military to search Honduran, Guatemalan, Belizean, Mexican, and international waters for some sign of Joe and his little boat. After four days of turning up nothing, they called it quits.

Unwinding the business interests of a missing person also is complicated. If the person has not left you with a durable power of attorney, creditors won’t speak to you. It took six months for us to get a New Jersey court to designate my father as Joe’s business manager. During that time, of course, his real estate holdings went so far under water that we had to walk away from them and let them go into foreclosure – thus losing assets that would have been of value to his minor children.

Getting Social Security benefits for the children of a missing person is complicated, but we learned that it can be done. Once we identified the person in the Social Security Administration who was sufficiently empowered and compassionate to want to help us, it took a couple of months and a lot of documentation, but we were able to get benefits for Joe’s kids.

Claiming life insurance on behalf of the children of a missing person is really complicated: insurers won’t consider a claim without a death certificate; courts won’t provide a death certificate without a presumptive death finding; the State Department will not provide a presumptive death finding in the absence of a finding by local (in our case, Honduran) authorities.

This is where things become unnecessarily complicated.

State Department officials claim federal regulations prohibit them from providing a finding of presumptive death without having our family first hire Honduran lawyers to go through the Honduran courts so the judge can tell us to take out an ad in a Honduran newspaper to ask if anyone has seen Joe. If no one surfaces to say they have seen him, the court will consider providing a finding. I know of only one family that has gone through these “proper channels”; this family paid legal fees to a pair of Honduran attorneys for five years before those attorneys disappeared. This family is now back to square one.

In a situation like ours – a rare case in which the U.S. government actually got involved with the search and logged an extensive search/rescue operation in partnership with the family; in which the family has hired private investigators to explore whether the person might have committed suicide or met with foul play; and in which the Social Security Administration has found the evidence at hand sufficiently compelling to provide benefits to the missing man’s children – it is unreasonable and inhumane to force the family to go through the judicial system of a politically unstable country in a volatile region to “find” what the State Department already knows.

Given the evidence, any reasonable person would conclude that my brother very likely died on May 10 or shortly thereafter somewhere in the waters between Honduras and Mexico.

Not only is it unreasonable and wrong – it is not required by the regulations the State Department cites in rejecting our appeal. Here is the relevant regulatory language (7 FAM 280, if you would like to look it up):
"Section 234 of the James W. Nance and Meg Donovan Foreign Relations Authorization Act...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."

7 FAM 280 goes on to say that the intent of this provision is: "intended to allow the consular officer to issue a report of presumptive death in 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"

Our case definitely meets the first criterion (persuasive evidence of death); and, indeed, local authorities have not issued a finding of death. Can we demonstrate that the local authorities are “not likely to issue a finding”? If we are required to do so, it is a cruel absurdity: to avoid going through a costly and risky process, we are required to go through that process. And if State is willing to provide a finding in the case of “unlikely to issue a finding” – then why not simply provide it themselves, or at least consider it?

The State Department claims it is required to await a local Honduran finding. However, pay attention to the relevant language:

"A United States citizen or non-citizen national may disappear or be missing in circumstances where it appears likely that the individual has died, but there is no local authority able or willing to issue a death certificate, OR no judicial finding of death, OR no local competent authority willing to make a finding of presumptive death." (emphasis mine)

Legal reasoning often hangs on the difference between “and” and “or”. Note that the circumstances in which State may consider a finding in the absence of a local finding consists of three possible scenarios linked by the word “or”, rather than “and”: No local authority willing or able to issue a death certificate (who can judge in advance the Honduran courts’ willingness?); OR no judicial finding of death (at this time, there is no judicial finding of death); OR no local competent authority willing to make a finding of presumptive death (again, how can we judge in advance the willingness – or, for that matter, the competence – of a local authority to make a finding?).

The second point certainly supports our argument that State should consider our appeal for a finding. I also believe we are supported by the third point, as 7 FAM 283 goes on to say:

"This situation may include…death in a plane crash where there are no identifiable remains, death in a plane crash beyond the territory of any country, death in an avalanche, disappearance/death at sea, or other sudden disaster where the body is not immediately (or perhaps ever) recoverable."

Wouldn’t a reasonable person find, based on this language, that the State Department is empowered to provide a finding? Let’s continue:

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

Bingo! What possible semantic gymnastics are required to read this regulation as meaning the State Department’s hands are tied?

Believing there might be additional regulatory, legislative, or judicial language governing this matter, I asked Theodore Coley -- Chief for Western Hemisphere Affairs,
Office of Overseas Citizen Services and Crisis Management, Bureau of Consular Affairs, Department of State -- if there were relevant provisions other than 7 FAM 280. His response:

“Everything we do is governed specifically by 7 FAM, which concerns Protection of U.S. Nationals Abroad. 7 FAM 200 covers death and estates of U.S. citizens abroad, and chapter 280 covers presumptive deaths. There are no other regulations or legislation that we work with.”

So, FAM 280-283 is it. This is the regulation that State Department officials claim requires families of people who disappear in politically unstable countries where corruption is often the only thing preventing total chaos from reigning to go with hat in hand to the courts in those countries – at personal and financial risk – to seek confirmation of that which the State Department already knows.

This is unreasonable, inhumane, and – by the very regulations State cites – unnecessary. The State Department clearly has discretion in our case and very likely would in others, and I cannot imagine what U.S. interest is served by abdicating that authority. Since the Department of Consular Affairs has chosen not to consider my family’s appeal, we have asked Sen. Menendez and Sen. Lautenberg to escalate our plea to the highest levels of the State Department, up to and including Secretary of State Hilary Clinton. We fervently hope they will do so and urge all New Jersey voters who agree with our position to let the senators know how you feel.