Additional Comments Regarding Dutch Court Decision

A poster in a newsgroup has kindly summarized for me the reasons given in the court decision that rejected my Dutch asylum appeal. Though the argument presented in my 1996 letter to the Court is valid and should have been addressed, additional comments and observations are called for.

As I now understand it, the Court rejected my appeal on the following bases:

These are specious arguments -- a plausible mask for illegal discrimination.

In "Hard Realities," I explain that American agents stole my briefcase in Amsterdam on 22 October, 1992 and that it was returned to me, with a few items missing, too late for my interview before the Dutch Ministry of Justice (see the police reports). My interview thus lacked the benefit of the relatively small packet of documents I had brought with me in support of my asylum application. In addition, the lawyer who was supposed to represent me at the interview never showed up.

The Ministry's negative decision was later stolen from me, and the Court's insulting response to my earnest 1996 letter provided neither a copy of that nor a translation of its own decision. If I remember correctly, the Ministry did not deny that I met the definition of a Convention refugee. It merely stated that the Netherlands is a small country and did not have room for me.

I had a lawyer for the appeal, Mrs. C.H.A. Huisman. In preparation for my appeal hearing, she submitted to the Court a number of documents I had given her. These included the "formfilling" statement from my 1991 Danish asylum application. Apparently, the Dutch court relied heavily on this document in reaching its decision. It is a reasonably good statement, but I wrote it without reference to most of my documents (I had been deprived of them in Denmark, too).

The "formfilling" statement is deficient in two respects. It fails to note explicitly that I worked for a government agency (the New York State Office of Mental Retardation and Developmental Disabilities) which has a long history of conducting classified experiments under federal contract. It also fails to state that in 1985 I "blew the whistle" on corrupt associations between persons at my workplace and brutal police who had used electric stun-guns to torture marijuana suspects.

I am fairly certain, though, that these points were covered in the "vele andere brieven" that Mrs. Huisman submitted in my behalf. I had also given her a tape recording featuring Gary Null's 1992 interview of Ross Gelbspan, author of Break-Ins, Death Threats, and the FBI, which details some of the human rights violations and acts of state terrorism visited upon those who, like me, had demonstrated against American military aid to El Salvador. Though I was not a member of CISPES, Sanctuary, or Sojourners, my employers, wishing to rid themselves of this troublesome whistleblower, used their contacts in federal agencies to focus attention on me. I doubt that the Court was aware of this tape, or of Mr. Gelbspan's book. Had the judge known of this well-researched volume by a Pulitzer-Prize-winning reporter, he might have found it a bit more difficult to render a negative decision.

The Reagan Administration's persecution of persons and organizations opposing its policies in Central America seems, at one point, to have involved considerable scrutiny of Catholic University of America graduates from the 60s (I am Class of 1964). Jack Elder of the Sanctuary Movement, who had been a friend and Sigma Pi Delta fraternity brother of mine, was among those prosecuted for trying to save El Salvadoran refugees from deportation and almost certain death.

On pages 186 and 187 of the paperback edition of Break-ins, Death Threats, and the FBI, Ross Gelbspan writes about a right-wing private investigator and former CIA agent from Texas, Philip Mabry, who kept files on people opposed to American policies in Central America. His organization was named (note the irony) Americans for Human Rights and Social Justice!

In 1984, at the suggestion of Colonel Oliver North (of Contragate notoriety), Mabry wrote a letter to FBI Director William Webster in which he accused a number of groups and individuals of having Communist connections. Among those named in this McCarthyite witch hunt were the actresses Susan Anspach (a classmate of mine whom I knew) and Susan Sarandon (who went to Catholic University after we graduated, but who had grown up in my home state of New Jersey).

According to Ross Gelbspan, the letter was taken seriously. On December 27, 1984, Mabry received a reply from Assistant FBI Director Buck Revell that assured him "your concerns and comments will be carefully reviewed."

In 1982, I had participated in a Jersey City, New Jersey demonstration opposing US military aid to El Salvador sponsored by the Committee In Solidarity with the People of El Salvador (CISPES). I had signed a petition opposing US policy against Nicaragua. I was also on the mailing list of the All Peoples Congress, an organization that Phil Mabry wouldn't like very much at all.

The protection of law is what political asylum is all about! A history of persecution validates a fear of persecution. The documents I submitted established beyond a doubt that I could not obtain the equal protection of American laws. A subsequent example of this denial is the FBI form letter posted on this web site. When law enforcement agencies flatly refuse to accept and investigate a complaint of criminal civil rights violations, this is not a "non-objective experience." It is both objective and tragic.

The statement I composed in preparing for my Dutch asylum appeal in December, 1992 was rather blunt, claiming that Dutch authorities had coerced me into withdrawing my 1991 asylum application and that they had conspired with Danish authorities to keep my documents out of my hands throughout my stay in Denmark. I wondered aloud how the Dutch Ministry of Justice could render a negative decision knowing that the small supply of documents I had brought with me on my second trip was out of my possession and, in fact, in the hands of the Amsterdam Police. I suggested that discrimination on the basis of national origin was behind it all.

My complaint against the Netherlands and Denmark before the UN Committee Against Torture, mailed from Denmark on 31 October, 1991, reports that the Dutch had coerced me into withdrawing my asylum application by refusing to process it further and by making return of my American passport contingent upon my willingness to sign a paper stating that I was not acting under duress. Of course I was coerced! Why would I voluntarily forsake the Netherlands for Denmark? Why would I leave my first choice in favor of my second? Is Denmark a better or safer place? Is the Danish asylum system more fair? Why, the next year, did I return to the Netherlands, rather than to Denmark or another country?

Yes, the US Government did not prevent me from leaving the country. I was issued a valid passport and was able to board a plane without encumbrance. What this establishes beyond a doubt is that I was not a fugitive from justice. It does not necessarily prove that my fear of persecution was -- and is -- ill-founded. A country as powerful as the United States has agents everywhere. That these agents saw fit to steal my briefcase in Amsterdam, depriving me of my documents, indicates that they were definitely keeping an eye on me. They didn't have to keep me off the plane! They were probably on the plane with me! Have you ever seen how a cat plays with a mouse? That's why I needed, and still need, the protection of another country's laws!

On my page of photos with captions titled "Before, During, and After," I note that the elation -- the exultation -- that I felt in the Netherlands may have worked against me as an asylum-seeker. Refugees are supposed to demonstrate fear of persecution. I was so happy to be out of this disgusting hell-hole of a country -- so happy that my health was starting to improve -- that my smile may have undercut my credibility.

Running beneath this court decision is an undercurrent of discrimination on the basis of national origin. The earlier decision by the Ministry of Justice placed me in an "accelerated procedure," which might be called the "bum's rush" or "let's get him out of the country as soon as we can." Such "accelerated procedures" are routinely applied to asylum applicants fleeing countries that the host nation arbitrarily regards as "safe." Though the Court decision apparently did not invoke this principle, the letter sent to me in 1997 by J.W. de Gee, Esq. of the Dutch Ministry of Justice clearly applies it to my case. Such discrimination obviously violates Article 3 of the Convention relating to the status of Refugees, as well as Articles 2 and 26 of the International Covenant on Civil and Political Rights.

Dutch officials, like many others, make an invalid distinction between "refugees" and "asylum-seekers," presuming that the latter may be forcibly returned at will to their countries of origin. This is wrong -- simply and horribly wrong. Refugee status is determined by the personal circumstance of the refugee -- the reality, if you will -- of his or her experience, whether or not the host country chooses to recognize this reality and acknowledge this status. Paragraph 28 of the "Handbook on Procedures and Criteria for Determining Refugee Status" published by the Office of the UN High Commissioner for Refugees puts it this way:

28. A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.

Therefore, whenever Dutch or any other officials arbitrarily reject an asylum-seeker who, in fact, meets the definition of a Convention refugee, they are violating the human rights of that refugee. He or she is not a "failed asylum-seeker," but a victim of human rights crime committed by the host country. Should these officials then return that person involuntarily to the country he or she has tried to flee, they are committing an unpardonable atrocity.

As in the USA's Watergate scandal of the 1970s, the coverup proves the case. Something -- someone -- has obstructed processing of my complaint against the Netherlands before the UN Human Rights Committee, now six years old and still unacknowledged, as well as my complaint against the Netherlands and Denmark before the Committee Against Torture, which is, as of this writing, more than ten years old.

My fear of persecution on the basis of my political beliefs and the free exercise of my rights was, and is, eminently well founded. In the absence of justice and rescue, in the lack of effective advocacy and legal representation, I languish now in the country of my oppressors and torturers, subjected to a deliberate program of very slow murder.

There was no good reason for the Dutch Government to have coerced withdrawal of my 1991 asylum application. There is no good reason for that government to have refused subsequently to acknowledge and remedy that act of cowardice and ruthless expediency. There is no good reason for my callous 1992 rejection by the Dutch Ministry of Justice, no good reason for the District Court to have rejected my appeal. There is absolutely no excuse for the Dutch Government's abominable act of refoulement on 1 February, 1993, no excuse for its refusal to re-admit me when I desperately returned three days later. There is no excuse for the insults, no excuse for the coverup, no excuse for the obstinate adherence to policies that clearly violate international law.

Shame, shame on the Dutch Nation, which I have loved above all others! How will history judge your corruption? How will you atone for the suffering of the many desperate, heroic souls whom you have doomed to torture and murder? In the presence of the martyrs whose fates you have sealed, how will you, at long last, explain your cruelty and cowardice to God?

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