U.S. Certifies Merida Initiative Aid to Mexico Despite Lack of Civilian Court Prosecutions; Report to Congress Now Available

During Monday's State Department press briefing, Assistant Secretary Philip Crowley mentioned that the agency had sent its report on Mexico's human rights progress to Congress on Thursday of last week.

Senator Leahy had questioned State's planned report, but State managed to patch things up, or so it claimed. Tuesday's Post reports:

State Department officials withdrew and then announced that the often secretive Mexican military had provided additional information on cases that it had prosecuted against abuse.

Aha, additional information on cases the military had prosecuted. But wait, that doesn't satisfy the requirement. The point is that the Merida Initative requires prosecutions in civilian courts. The language in what Congress authorized specifically said that the Mexican government must be:

"ensuring that civilian prosecutors and judicial authorities are investigating and prosecuting, in accordance with Mexican and international law, members of the federal police and military forces who have been credibly alleged to have committed violations of human rights, and the federal police and military forces are fully cooperating with the investigations."

So saying that the military had prosecuted cases of torture -- even if it's 100% true -- doesn't satisfy the legal requirement. (For more background on Mexico's allegations recently that it has, in fact, prosecuted torture cases successfully in military courts, see this very useful HRW document from last week. But again, that's a side point).

State's report to Congress has been posted today by JURIST. "Section 4: Investigation/Prosecution of Allegations of Human Rights Violations by Police/Military" is on pages 9-11 of the PDF. It's very interesting stuff. It says that the laws still on the books almost always require military and not civilian prosecution (despite that being in contravention of international human rights law, and, many human rihgts groups argue, Mexico's own constitution -- though others disagree on that later point). Apparently Mexico's Supreme Court ruled on a case over the legality of that law earlier this month, on August 910, and ruled on technical grounds, not answering the question.

The report says that given that law, unsurprisingly, there have been few cases of military abusing civilians handed over to civilian courts -- just two cases since December 2006.

The State Department, it would seem, is in a pickle. Congress stipulated that Mexico had to deliver civilian prosecutions. But that isn't happening much -- and, it would seem from State's report, not going to be happening any time soon, because either Mexico's congress would have to change the law on who prosecutes, or Mexico's top court would have to strike down the current law, something it declined to do just nine days ago.

This gets back to the paternalism question, which has been raised by various folks on the left in Mexico, including some of the left wing members of the congress last year. Who is the U.S. to be telling them what to do? This mess would have been less of a mess if the Bush Administration hadn't botched the roll-out of the Merida Initiative in the first place -- doing it in secret Bush-Calderon negotiations, leaving out both congresses.

So where does this leave us?

Having military prosecutors investigate cases of military abuse of civilians is not okay. That's the starting point. It's not something that should be negotiated away. It doesn't work in theory and it doesn't work in practice, anywhere, let alone in Mexico, of all places. I think this is pretty clear, and the U.S. would be mistaken to approach this as "let's repair Mexico's military court prosecutions", because it's not something that can be fixed. That there are facts on the ground -- as in, a law in place in Mexico saying the cases should be handled by primarily by the military -- should not be treated as particularly important in the debate over what should happen from here. Sorry if that sounds paternalistic.

The U.S. Congress was absolutely right to demand civilian prosecutions as a condition for the aid. But this was a demand that the Mexican administration may well have had no intention whatsoever to implement.

Now Obama's State Department faces a tricky situation, and it appears that it is addressing it by simply not addressing it. They're going to give the last 15% of the aid, nevermind that Mexico hasn't met one (and possibly more) of the conditions. This sets a horrible precedent, not just for human rights policy but for the Obama administration's view of its power in relation to the legislative branch. If the Bush administration ignored Congress's mandate so blatantly, there'd be plenty of uproar.

Obama should be following what Congress stipulated, and deny the last 15% of aid until there are civilian prosecutions. Yes, that would create a diplomatic mess. And it's not like Mexico's legislature would necessarily suddenly accede to the demand and change the law. But it is the right thing to do. Remember, this 15% of the aid is mostly symbolic; we're talking in the ballpark of $200 million. This is where the line in the sand should be drawn.