India-US Collusion Violates Religious Freedom of Families of US WWII MIAs

“Since the earliest pre-Christian civilizations, virtually every faith and society has provided the dead with a proper burial. ‘The ancient concept that every person is entitled to a proper burial…provides the origins of American jurisprudence concerning the right of sepulcher.’” (Karen M. Richards and Brian M. Jacobson, “Shrouded in Controversy: Evolution of the Right of Sepulcher and a Medical Examiner’s Obligations Under the Right of Sepulcher and the Public Health Law”, Health Law Journal, Fall 2015, https://nysba.org/NYSBA/Publications/Section%20Publications/Health/PastIssues1996present/2015/HealthJrnFall15.pdf)

While much has been written about the Indian Government’s violations of the rights of US families to repatriate their loved ones, lost during World War II while serving in the US military on present-day India territory, comparatively little has been written on how specifically these violations impact the religious freedom of US families to give those missing relatives the burials they are owed by law and custom. Even less has been written about how the US Government, by actively cooperating with the Indian Government’s deprivation of these internationally guaranteed rights to give their loved ones the burials their religious beliefs demand, is violating the US Constitution’s First Amendment protection of their right to “free exercise” of their religion. This essay will attempt to address these less discussed but extremely important issues.

A. International humanitarian law establishes as one of its most fundamental propositions that families are guaranteed, as part of the free exercise of their religious faiths, the right to bury their loved ones lost in war in the manner prescribed by their religions:

• Article 1 of the United Nations Charter states that one of the purposes of the United Nations is “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” (https://www.un.org/en/sections/un-charter/chapter-i/index.html)
• “Article 17 of the 1949 Geneva Convention I provides: [Parties to the conflict] shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found.” (https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule115) The obligation to dispose of combatants who die in the field in a respectful manner is codified in the First Geneva Convention’s Article 17. The Article specifies that the dead must be buried, if possible, according to the rites of the religion to which they belonged and that they may only be cremated in exceptional circumstances. The Article furthermore provides that burial should be in individual graves grouped according to nationality if possible. Article 17’s opening phrase is ‘Parties to the conflict shall ensure…’ The wording indicates an obligation. Accordingly, the commentary to the First Geneva Convention states that the Parties to the conflict have to make certain that this prescribed task, for which they are responsible, is duly carried out and there is no justification for thinking that the task is optional.”
• Article 18 of the 1948 Universal Declaration of Human Rights provides: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
• Article 18 of the 1966 International Covenant on Civil and Political Rights (aka ICCPR, ratified by the Government of India on 10 April 1979; signed by the Government of the United States on 5 October 1977 and ratified on 8 June 1992) codifies the fundamental right to Freedom of Religion and Belief (FoRB), stating that: “1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching....3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” (https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx)
• Article 2 of the ICCPR obligates each signing state to extend the freedom of religion not only to its own citizens but also to all individuals under its jurisdiction: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx) This principle has been explicitly endorsed by the official United States Commission on International Religious Freedom, which has stated that “religious freedom is not only for a country’s citizens. International human rights standards require a state to extend rights and equal status to 'all individuals within its territory and subject to its jurisdiction.' (United States Commission on International Religious Freedom, International Standards for Constitutional Religious Freedom Protections, https://www.uscirf.gov/sites/default/files/resources/Constitutional%20principles%20statement%20[2].pdf). Thus, by Article 2 of the ICCPR, India is obligated to extend the protections of freedom of religion not only to its own citizens but also to relatives, of American World War II MIAs, who have historically been prevented by the Indian Government from exercising their religious freedom to bury their loved ones lost in India.
• According to Article 75 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.”
• The 1975 Helsinki Accords (also known as the Helsinki Final Act) stated that “Within this framework the participating States will recognize and respect the freedom of the individual to profess and practice, alone or in community with others, religion or belief acting in accordance with the dictates of his own conscience.” (https://www.osce.org/files/f/documents/5/c/39501.pdf)
• Article 1 of the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief provides: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching....Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.” (https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.12_declaration%20elimination%20intolerance%20and%20discrimination.pdf)
• Article 6 of the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief states that “the right to freedom of thought, conscience, religion or belief shall include, inter alia , the following freedoms: ( a ) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;....( h ) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;” (https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.12_declaration%20elimination%20intolerance%20and%20discrimination.pdf)
• Rule 104 (“Respect for Convictions and Religious Practices”) of Customary International Humanitarian Law states: “The convictions and religious practices of civilians and persons hors de combat must be respected.” (https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule104) The scope of this provision obviously extends to the religious practices of the surviving relatives of combatants killed in war.
• Rule 115 (“Disposal of the Dead”) of Customary International Humanitarian Law states that “The dead must be disposed of in a respectful manner and their graves respected and properly maintained.... State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.” (https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule115)
• In its Guide on Article 8 of the European Convention on Human Rights: Right to respect for private and family life, the European Court on Human Rights, the European Court of Human Rights stated that “The Court has held that the Article 8 protection of private and family life covers the right to bury family members. Individuals have challenged the State’s failure to grant access to the remains of deceased family members in a wide range of contexts.” ( https://www.refworld.org/pdfid/5a016ebe4.pdf )
• The Last Rights Project, staffed by Judge Catriona Jarvis and attorneys Syd Bolton and Danai Angeli, has commented that the European Court on Human Rights has established by its decisions in several cases, including Girard v. France (2011), Sabanchiyeva and others v. Russia (2013), and Maskhadova and others v. Russia (2013 ). that “the failure to return a dead body to the relatives for burial, or disclose where it was buried, can constitute a violation of Article 8 [of the European Convention on Human Rights] if the interference with the right to bury one’s relative cannot be justified by reference to international human rights law by the state authorities.” (The Last Rights Project, The Dead, the Missing and the Bereaved at Europe’s International Borders: Proposal for a Statement of the International legal obligations of States, May 2017, https://www.ohchr.org/Documents/Issues/Migration/36_42/TheLastRightsProject.pdf)
• The International Religious Freedom Alliance, which the United States Government founded in 2020 (under the Trump Administration, along with 26 other countries), commits its members to “upholding their state obligations under international law in general and the ICCPR specifically relating to freedom of thought, conscience, and religion or belief, including the right to hold any faith or belief, or none at all, and the freedom to change faith.” (https://www.christianitytoday.com/news/2020/february/international-religious-freedom-alliance-pompeo-brownback.html?fbclid=IwAR31VLHFYbiJ4-eyEdMwm4jnmL4-VjPce_ob-tX-V9O6VbhRu7L0iTX-G54; https://www.state.gov/declaration-of-principles-for-the-international-religious-freedom-alliance/)
• In the words of Gloria Gaggioli, Ph.D., Swiss National Science Foundation Professor at the Law Faculty of the University of Geneva: "...Religion, belief and culture must be respected. This is owed to the dead and to the next of kin. Thus, the dead must be honorably disposed of and if possible according to the rites of the religion to which they belonged..." (Gloria Gaggioli, "International Humanitarian Law: the legal framework for humanitarian forensic action", Forensic Science International, January 2018, https://iranarze.ir/wp-content/uploads/2018/01/E5626-IranArze.pdf)

B. United States federal law guarantees the religious freedom right of US families to bury the remains of their loved ones.

Under the law of the United States, an excellent argument can be made that US Government interference with the right to bury the remains of one’s relatives constitutes a violation of both the Free Exercise Clause of the First Amendment, and the Federal Religious Freedom Restoration Act (RFRA).

The Free Exercise Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”

The federal RFRA statute prohibits the US Government from substantially burdening a person's free exercise of religion, even if the burden is the result of application of a rule of general applicability, unless the government can demonstrate that the burden is (1) in furtherance of a compelling governmental interest, and (2) the least restrictive means of furthering that compelling governmental interest. By way of a remedy, the Religious Freedom Restoration Act states that “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.”

The plaintiffs in at least two relatively recent federal court cases persuasively presented this argument, although in both instances the courts erroneously rejected the claim.

In the case of World Trade Center Families for Proper Burial v. The City of New York, the plaintiffs challenged the decision of the City of New York to permit the commingling of the remains of their loved ones, murdered in the September 11, 2001 Al-Qaeda terrorist attacks, with city garbage, preventing the plaintiffs from giving the deceased the burials their religious faiths mandated. The families persuasively contended that “...because burial is a fundamental aspect of religious expression, the city’s decision amounts to a denial of their religious freedom under the First Amendment.” (https://www.nj.com/news/index.ssf/2010/07/world_trade_center_families_fi.html)

The decision of the US District Court for the Southern District of New York to reject this contention was poorly argued. Judge Alvin K. Hellerstein casually brushed off the families’ First Amendment “free exercise” claim, not bothering to give it the due consideration it deserved.(https://casetext.com/case/wtc-families-for-a-proper-burial-v-city-of-new-york)

In fact, the subsequent decision of the Second Circuit Court of Appeals to affirm the lower court’s decision conceded the moral bankruptcy of the lower court’s decision, while upholding it on a purely legalistic level: “On a human level, plaintiffs' claims are among the most compelling we have ever been called on to consider. They have endured unimaginable anguish, and they seek nothing more than the knowledge that their loved ones lie in rest at a place of their choosing.” (https://www.courtlistener.com/opinion/4170/world-trade-center-families-for-proper-burial-v-th/)

The decision of the US Supreme Court to refuse to even listen to the plaintiffs’ appeal of the Second Circuit’s decision shocked the families. “‘Denying our right to present this in court is a denial of justice that is indeed shocking,’ said Diane Horning, whose son, Matthew, was killed nine years ago in the terrorist attack at the World Trade Center. ‘Denying the burial is a blatant denial of our free exercise of religion.’ Horning is president and co-founder of WTC Families for Proper Burial...” (https://religionnews.com/2010/10/06/9-11-families-shocked-after-supreme-court-rejects-burial-appeal/) The plaintiffs’ attorney, a distinguished civil rights attorney, rightfully condemned the Court’s decision: “‘When the Supreme Court said no, the court system said it is not willing to at least address this issue,’ Siegel said. ‘We are extremely disappointed. We think a substantial wrong has been committed and justice has not been served.’” (https://www.silive.com/news/2010/10/top_court_kos_burial_bid_by_91.html)Given

Given the weight of the plaintiffs’ First Amendment complaint, the Court’s decision to deny the plaintiffs’ writ of certiorari was totally unwarranted. If history has any lesson to teach, it is that the Supreme Court will ultimately change course and reverse this baseless and extraordinarily harmful decision, as it has numerous times in the past in other cases of governmental abuse of civil rights.

The second federal court case germane to the federally guaranteed rights of the families of US servicemen lost in India during World War II is Patterson v. Defense POW/MIA Accounting Agency. In this case, the plaintiffs, suing the Defense POW/MIA Accounting Agency for failing to return to them the remains of relatives killed in the Philippines during World War II, stated a claim for relief under the First Amendment and the Religious Freedom Restoration Act, arguing that the Government’s refusal to return the remains of the Families’ relatives placed “a substantial burden on their exercise of religion.” The Families went on to argue that the Government had neither showed that its actions were in furtherance of a compelling Government interest nor that those actions were the least restrictive means of furthering that interest. (https://bataanmissing.com/pattersonVdpaa/032-1_PlfResponse.pdf)

The District Court in this case (United States District Court, W.D. Texas, San Antonio Division), like the District Court in the WTC Families case,  failed to give the plaintiffs’ First Amendment and RFRA claim due consideration, merely asserting that “without any explanation of what makes a ‘proper burial in accordance with each respective family's religious beliefs,’ the Court cannot assess the alleged interference.” (https://www.leagle.com/decision/infdco20190730f84)        

C. The Frank R. Wolf International Religious Freedom Act of 1998

By not permitting MIA recovery teams reasonable access to US crash sites in northeast India, the Indian Government is effectively preventing the relatives of these MIAs from exercising their right to conduct funeral ceremonies for these MIAs, in violation of the Frank R. Wolf International Religious Freedom Act (IRFA) of 1998. As the USCIRF points out in its official commentary on the IRFA, "Violations of the internationally recognized right to freedom of religion and religious belief and practice, as set forth in international instruments”?include "“(A) arbitrary prohibitions on, restrictions of, or punishment for— (i) assembling for peaceful religious activities such as worship, preaching, and prayer, including arbitrary registration requirements". (https://www.uscirf.gov/sites/default/files/2021-03/2021%20Legislation%20Factsheet%20-%20IRFA.pdf)

The IRFA clearly specifies the actions that the US Government must take in response to such violations, like the ones committed by India, even if the country involved has not already been designated by the State Department a Country of Particular Concern (CPC), as in India's case. "IRFA also provides a range of options for diplomatic action toward violator countries that are not CPCs, including those placed on the SWL. These actions include a private demarche, a public condemnation, the delay or cancellation of scientific or cultural exchanges, and the denial or delay of official state visits."(https://www.uscirf.gov/sites/default/files/2021-03/2021%20Legislation%20Factsheet%20-%20IRFA.pdf)

In the event the State Department was to finally accept the USCIRF's well-argued recommendation that India be designated a CPC, then even more severe sanctions are mandated by the IRFA against India, including "9. The withdrawal, limitation, or suspension of United?States development assistance 10. Denials of credit loans under OPIC or the Export-Import Bank 11. The withdrawal, limitation, or suspension of United?States security assistance 12. Directing the U.S. executive directors of international?financial institutions to oppose and vote against loans primarily benefiting the specific foreign government, agency, instrumentality, or official found?or determined by the President to be?responsible?for?violations 13. Denials of exports under certain instruments such as?the Arms Export Control Act 14. Prohibiting U.S. financial institutions from making loans or credit to the government, entities, or officials?responsible for violations under IRFA 15. Prohibiting the U.S. government from procuring goods?or services from the government, entities, or officials responsible for violations" (https://www.uscirf.gov/sites/default/files/2021-03/2021%20Legislation%20Factsheet%20-%20IRFA.pdf)

D. The United States Congress has legislatively obligated the Executive Branch to make respect for religious freedom rights a precondition for the negotiation of trade agreements with foreign countries. In the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (TPA-2015), signed into law by former President Obama on June 29, 2015 (P.L. 114-26), "the Senate adopted unopposed an amendment by Senator Lankford to add an overall negotiating objective to 'take into account conditions relating to religious freedom of any party to negotiations for a trade agreement with the United States.'" (https://sgp.fas.org/crs/misc/R43491.pdf) This provision gives the Administration the authority to require that the Modi Government start respecting the religious freedom rights of the 400 families of US MIAs unrecovered in India to bury their dead before any new trade agreement with the Indian Government can be concluded.

E. The Constitution of the Republic of India protects the rights of non-citizens of India as well as Indian citizens.

Article 21 of the Constitution of the Republic of India reads as follows:

"21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law." (https://indiankanoon.org/doc/1199182/?__cf_chl_jschl_tk__=pmd_QcRBgaoc1Rze9TX98mDwBj4kyoeeXqubDlx0uCwxW4w-1631584319-0-gqNtZGzNAiWjcnBszQjl)

According to the late V. S. Mani, Professor of International Legal Studies at Jawaharlal Nehru University: “The Supreme Court’s jurisprudence has, since 1977, undergone a sea-change, inter alia in matters of human rights or fundamental rights in the language of the Indian Constitution: in situations which reveal serious inadequacies in the Indian law, the human rights provisions in the Constitution have since then been interpreted and applied by the Court in harmony with developments in international law, without waiting for the legislature to formally amend domestic law. The Constitution of India makes some of the fundamental rights available to “all persons”, not merely to Indian nationals. Thus in the Chakma Refugees cases [32 ] the Supreme Court of India specifically held that the Article 21 guarantee of the right to life and personal liberty is applicable to foreigners as well...” (https://www.icrc.org/en/doc/resources/documents/article/other/57jqzm.htm)

F. The Indian Government is violating the Constitution of the Republic of India, provisions of international humanitarian law protecting freedom of religion, and the United States federal Frank R. Wolf International Religious Freedom Act of 1998 by preventing the families of 400 US servicemen, whose remains have not yet been recovered, from taking possession of those remains and giving those remains a proper burial according to the dictates of their faiths. The US Government’s collusion with the Government of India to prevent unrestricted humanitarian access to World War II US Army Air Force crash sites in India, in addition to violating international humanitarian law, is a violation of both the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 ("RFRA"). This collusion by the US is also a flagrant affront to official US policy as established by the International Religious Freedom Act of 1998.

The Government of India’s violation of their freedom of religion is based on the fact that the Government of India, ever since the US and Indian Governments first concluded an agreement on MIA recoveries in 2008, has imposed severe restrictions on the number and duration of recovery operations permitted on an annual basis on India’s territory.

These restrictions have gone so far as to result in an undeclared, de facto and illegal moratorium on MIA recoveries in the Indian state of Arunachal Pradesh from late 2009 until late 2015. Arunachal Pradesh is the state which the US Defense Department has publicly stated has the vast majority of such crash sites, and is in fact the location of 15 documented US Army Air Force crash sites discovered in recent years in India.

This moratorium and those continuing restrictions violate the Geneva Conventions, other significant provisions of international humanitarian law, and customary international humanitarian law, all of which the Government of India is obligated to observe.

The Government of the United States has colluded with the Government of India by covering up for the Indian Government’s illegal 2009-2015 de facto moratorium and its continuing imposition of arbitrary and illegal restrictions. This collusion has taken the form of repeatedly asserting in public announcements, without supporting evidence, that the Government of India has extended “full cooperation” with US MIA recovery efforts in India. This collusion has directly violated the “free exercise” rights of the families of our India MIAs and also directly violated the federal Religious Freedom Restoration Act.

Concerning the “free exercise” rights guaranteed by the First Amendment, the US Government’s collusion with the Indian Government to prevent repatriation of the remains of the vast majority of unrecovered US servicemen from India’s territory constitutes a violation of those rights. As already shown above, a similar claim was made by the plaintiffs in World Trade Center Families for Proper Burial v. City of New York, and Patterson v. Defense POW/MIA Accounting Agency. The courts’ rejection of those claims in those cases was tenuous at best, and has no bearing on the First Amendment “Free Exercise” claims of the families of our India MIAs.

Regarding the Religious Freedom Restoration Act, the US Government has never claimed that a compelling interest exists in condoning the severe Indian Government restrictions preventing the return of the remains of US service personnel to their families for religous burial. Nor does the Government have any compelling interest in withholding diplomatic protests to the Government of India over its poor level of cooperation with US MIA recovery efforts. Consequently, by substantially burdening the free exercise of religion of the families of US MIAs unrecovered in India, the US Government is in active violation of the Religious Freedom Restoration Act of 1993.

G. Historically documented policies pursued by the Obama/Biden and Trump/Pence Administrations demonstrate that the US Government has violated the Freedom of Religion of the Families of US MIAs in India

A review of the Obama/Biden and Trump/Pence Administrations’ activity in this area will substantiate this accusation.

On 25 January 2015 the Obama/Biden Administration joined with the Indian Government in proclaiming a “common commitment to the Universal Declaration of Human Rights (UDHR)”, turning a blind eye to the fact that India’s MIA recovery policy violates major provisions of the UDHR. (The White House, U.S.-India Joint Strategic Vision for the Asia-Pacific and Indian Ocean Region, 25 January 2015 , https://obamawhitehouse.archives.gov/the-press-office/2015/01/25/us-india-joint-strategic-vision-asia-pacific-and-indian-ocean-region) India’s MIA recovery policy, including the Modi Government’s continuation for well over a year of the previous regime’s de facto moratorium on MIA recoveries in Arunachal Pradesh, is clearly in violation of the UDHR Article 16 protections for families (“ The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. “). Inasmuch as this de facto moratorium infringed on the families’ right to bury their loved ones according to the dictates of their religions, it also violates UDHR Article 18 (“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. “) (United Nations, Universal Declaration of Human Rights, https://www.un.org/en/universal-declaration-human-rights/)

In spite of the fact that the Government of India repeatedly during the Obama/Biden years delayed or cancelled US MIA recovery operations in India, and in spite of the severe restrictions it imposed in violation of statutory and customary international humanitarian law, not one of the US Ambassadors to India during the Obama/Biden years filed a diplomatic protest with the Indian Government over the fact that those restrictions violated the religious freedom of US families to bury their relatives according to the dictates of their faiths. The specific US ambassadors to India who neglected their obligation to serve the interests of US citizens by not issuing a diplomatic protest to the Indian Government were Timothy J. Roemer, charge d’affaires Albert Peter Burleigh (as acting Ambassador), Nancy Jo Powell, charge d’affaires Kathleen Stephens, and Richard Verma. In addition to failing to file diplomatic protests, the Obama/Biden Administration enabled the Indian Government’s continuing violation of the religious freedom of our MIAs’ families in a multitude of other ways as well:

• by continuing to assert without citing any evidence that the Indian Government was extending “full cooperation” with MIA recovery efforts
• by removing several Indian defense/aerospace organizations from the US Commerce Department’s banned Entity List
• by awarding the Legion of Merit to Gen. Bikram Singh, Chief of the Indian Army
• by repeatedly claiming that India shared the United States’ respect for the “rule of law.”
• by refusing to endorse the bipartisan House bill H. Con. Res. 56 (114th Congress), which expressed “the sense of Congress that all trade agreements the United States enters into with a foreign country should provide reasonable collaboration with that country for the purpose of search and recovery activities for Armed Forces members missing in action from prior wars or military conflicts.”
• by endorsing India’s goal of membership in the Nuclear Suppliers Group (NSG), despite India’s refusal to adhere to the Nuclear Nonproliferation Treaty, and its refusal to commit to NSG’s core nonproliferation goals.
• by approving the sale of multiple advanced weapon systems to the Indian Government as part of a broader and explicitly stated policy of providing India with as much US-developed state-of-the-art military technology as possible.
• by conducting numerous joint military exercises with the Indian military.
• by designating India a “Major Defense Partner” of the United States
• by frequently calling India a “friend” and “ally” of the United States
• by signing in 2015 a joint ten-year Framework for the US-India Defense Relationship
• by endorsing India’s goal of obtaining a permanent seat on the UN Security Council
• by expediting the sale of six US-made nuclear reactors to India
• by ignoring India’s assistance to the North Korean ballistic missile development program, in violation of United Nations Security Council sanctions against North Korea
• by refusing to criticize the Indian Government’s pattern of almost always adopting an anti-American position during votes taken on resolutions in the UN General Assembly.

The Trump/Pence Administration continued the Obama/Biden Administration’s policy of ignoring India’s clear violation of the religious freedom rights of US families to bury their war dead according to the rituals of their faiths. Like the Obama/Biden Administration before it, not one of the US Ambassadors to India during the Trump years filed a diplomatic protest with the Indian Government over the fact that its restrictions violated the religious freedom of US families to bury their relatives according to the dictates of their faiths. The specific US ambassadors to India who neglected their obligation to serve the interests of US citizens by failing to issue a diplomatic protest with the Indian Government were Charge d’affaires MaryKay Carlson (as acting Ambassador) and Kenneth Juster.

H. The Controversy over a CPC designation for India

Especially troubling is the fact that the Trump/Pence Administration, while generally adopting a stance of giving high importance to religious freedom overseas, has turned a blind eye to the Modi Government’s persecution of non-Hindu religious minorities. In 2020,

Secretary of State Mike Pompeo refused to implement the recommendation of the US Commission on International Religious Freedom that India be designated a “Country of Particular Concern” (CPC), even in the face of bipartisan pressure in the Congress to do so.

“The “Coalition to Stop Genocide in India”, a broad coalition of Indian American and US-based civil rights organizations and activists, today welcomed a letter written by fourteen US Senators to Secretary of State Mike Pompeo stressing that US law requires the US Government to consider a federal commission’s recommendations that some countries be designated as a Countries of Particular Concern (CPC), which is the US Government’s official term for countries that are the world’s worst offenders of religious freedom.

The bipartisan letter was signed by ten Republican senators and four Democratic senators and sent to Secretary Pompeo this month. Should the US government decide not to accept the recommendations made by the United States Commission for International Religious Freedom (USCIRF), a federal commission, the letter requires the State Department to inform US Congress of its reasons within 30 days of making that determination.

Last year, the US designated nine countries, including China, North Korea, Burma, Pakistan and Saudi Arabia, as CPC on the basis of USCIRF recommendations. In April this year, the USCIRF recommended adding nine more countries, including India, to this list.

CSGI has repeatedly called for the inclusion of India in the list of countries of particular concern, and has urged the State Department to accept USCIRF’s recommendations in this regard, given the escalating levels of persecution against religious minorities in India.

“Our nation was founded on the principle that all people have a right to freely practice the faith of their choice, without fear of persecution by their government or any other actors,” the bipartisan letter to Secretary Pompeo said. “As the leader of the free world, it is vital that the United States model and promote this crucial human right and our values to the rest of the world as a fundamental part of our foreign policy objectives.” ....The Senators who have signed the letter are James Lankford (R-Oklahoma), Chris Coons (D-Delaware), Chuck Grassley (R-Iowa), Marco Rubio (R-Florida), Lindsey Graham (R-South Carolina), Thom Tillis (R-North Carolina), Tim Scott (R-South Carolina), Joni Ernst (R-Iowa), Jacky Rosen (D-Nevada), Kevin Cramer (R-North Dakota), Roger Wicker (R-Mississippi), Steve Daines (R-Montana), Chris Van Hollen (D-Maryland), and Joe Manchin (D-West Virginia).“ (https://stopgenocideinindia.com/senators-urge-india-cpc/)

Significantly, the Republican and Democrat Co-chairmen of the Senate India Cauucs Senators John Cornyn and Mark Warner, declined to sign on to this letter.

On 28 April 2020, the Government of India, in a statement made by the spokesperson of the Ministry of External Affairs, angrily rejected the well-substantiated accusations of the USCIRF, but failed to counter any of those accusations with evidence to the contrary. (https://swarajyamag.com/insta/mea-slams-uscirf-for-its-india-report-says-its-a-biased-organisation-of-particular-concern)

For our MIAs in India, the relevance of the CPC controversy lies not only in how it represents just one more incidence of the Trump/Pence Administration’s general willingness to overlook issues that cast India in a negative light, but also in how it demonstrates the insensitivity of the Government of India to the religious rights of non-Hindus, like the families of our World War II MIAs.

In addition to failing to file diplomatic protests, the Trump/Pence Administration enabled the Indian Government’s continuing violation of the religious freedom of our MIAs’ families in a multitude of other ways as well:

• by continuing to assert without citing any evidence that the Indian Government was extending “full cooperation” with MIA recovery efforts
• by repeatedly claiming in public statements that India shared the United States’ respect for the “rule of law.”
• by refusing to endorse bipartisan House bill H. Con. Res. 61, which expressed “the sense of Congress that all trade agreements the United States enters into with a foreign country should provide reasonable collaboration with that country for the purpose of search and recovery activities for Armed Forces members missing in action from prior wars or military conflicts.”
• by endorsing the Obama/Biden Administration’s designation of India as a “Major Defense Partner” of the United States
• by inducting Gen. Bipin Rawat, Chief of the Army Staff of the Indian Army, into the International Hall of Fame of the US Army Command and General Staff College.
• by granting to India Strategic Trade Authorization-1 (STA-1) Status
• by granting to India waivers from US CAATSA sanctions, thus allowing India to purchase oil from Iran and develop and operate the Iranian port of Chabahar.
• by lobbying Congress to grant India a waiver from CAATSA-mandated sanctions for purchasing the Russian-made S-400 Triumf air defense system.
• by endorsing India’s goal of membership in the Nuclear Suppliers Group (NSG), despite India’s refusal to adhere to the Nuclear Nonproliferation Treaty, and its refusal to commit to NSG’s core nonproliferation goals.
• by approving the sale of multiple advanced weapon systems to the Indian Government as part of a broader and explicitly stated policy of providing India with as much US-developed state-of-the-art military technology as possible.
• by conducting numerous joint military exercises with the Indian military.
• by endorsing India’s goal of obtaining a permanent seat on the UN Security Council
• by continuing to expedite the sale of six US-made nuclear reactors to India
• by refusing to criticize the Indian Government’s pattern of almost always adopting an anti-American position during votes taken on resolutions in the UN General Assembly.
• Most significantly, on 13 June 2017, Rep. George Holding, co-chairman of the bipartisan Congressional Caucus on India and Indian-Americans, delivered a landmark speech devoted to “US WWII MIA RECOVERY OPERATIONS INDIA” on the floor of the US House of Representatives. In his speech, Rep. Holding emphasized that “the single largest impediment to these recovery operations came when the Government of India placed a de facto moratorium on operations in Arunachal Pradesh for the vast majority of 2010 until 2015.[italics added]” (See Gary Zaetz, “ June 2017: House India Caucus Co-Chair Assesses India’s Record of MIA Cooperation - and He Gives it a Mediocre Grade”, https://www.facebook.com/notes/mia-recoveries-locating-lost-wwii-servicemen/june-2017-congressional-india-caucus-co-chair-assesses-indias-record-of-mia-coop/358762251887117/) He made the damning conclusion that “the tempo of recovery operations could be categorized as slow at best for a variety of reasons, leaving the families of the deceased without closure. [italics added]” The Trump Administration, apparently recognizing how damaging this statement was to their efforts to suppress information on India’s MIA recoveries moratorium and to maintain the dubious credibility of its false narrative of excellent US-Indian MIA recovery cooperation, simply ignored Rep. Holding’s devastating critique. For instance, when I repeatedly brought Rep. Holding’s statement to the attention of Dr. Joseph Felter, the Trump Administration’s Deputy Assistant Secretary of Defense for South and Southeast Asia, he made no response.

Much has been made by conservative pro-Trump organizations about the Trump/Pence Administration's supposedly sterling record on religious liberty issues. A prominent example is the six-page report entitled "Religious Liberty Actions Taken by Trump Administration", issued by the Catholic League for Religious and Civil Rights on January 15, 2021. (https://www.catholicleague.org/wp-content/uploads/2016/07/Donald-Trump-Religious-Liberty-FINAL.pdf?fbclid=IwAR1FcaUcFJ4cqC1xGF_5biXR44w4IHnxTCsBIuhdBvNMZ2BLuX6Mk4truv0). This report favorably cited almost fifty instances of actions taken by the Trump Administration promoting religious freedom. Unfortunately, the report turned a blind eye to the seriously negative impact Trump Administration collusion, with India to cover up India's poor record of MIA recovery cooperation, had on the religious freedom of US citizens to bury their dead according to the rites of their religion. This negative impact on their religious freedom, while probably not intentional on the part of the Trump Administration, was nevertheless a direct result of this collusion policy.

I. This documented record of US Government collusion with the Government of India to cover up the Indian Government’s violations of international law governing the religious freedom of these families to give their loved ones the burials their religious beliefs demand clearly amounts to a violation of the rights of these families to freely exercise their religious faith, as guaranteed by the Free Exercise Clause of the First Amendment.