Former Salvadoran Generals Held Liable by U.S. Courts for $54.6 Million for Failure To Stop Torture

We have seen the development of the U.S. federal courts use of the Alien Tort Statute (ATS) starting with the 1980 decision of the U.S. Court of Appeals for the Second Circuit and the 2004 decision of the U.S. Supreme Court.[1]

In 2005 former Salvadoran Generals Jose Guillermo Garcia and Carlos Eugenio Vides Casanova were unsuccessful in their defense against Alien Tort Statute (ATS) and Torture Victims Protection Act (TVPA) claims by three Salvadoran refugees who allegedly were tortured by Salvadoran military personnel at various times from 1979 to 1983.[2]

The defendants in pre-trial proceedings moved for dismissal of the case that was brought in 1999 on the basis of the 10-year U.S. statute of limitations. This motion was denied with the trial court leaving the issue of equitable tolling or suspension of the statute of limitations to be resolved by a lay jury. In 2002, after a four-week trial and 20 hours of deliberation, the jury returned a verdict for the plaintiffs, concluding that the statute of limitations was tolled or suspended until the end of the Salvadoran civil war in 1992. The amount of the verdict was $54.6 million.[3]

The defendants appealed with the sole issue on appeal being the tolling or setting aside the statute of limitations.

Affirming the lower court, the federal appeals court stated, “The record swells with evidence regarding the brutality and oppression that the Salvadoran military visited upon the people of El Salvador. The evidence includes reports on abductions, torture, and murder by the military. The evidence reveals a judiciary too meek to stand against the regime.” Moreover, the appellate court endorsed the trial court’s finding that the plaintiffs “legitimately feared reprisals from the Salvadoran military, despite the fact that the defendants resided in the United States. The military regime, in which both Garcia and Casanova had held positions of great influence, remained in power. State-sponsored acts of violence and oppression continued to ravage El Salvador. The very regime against whom the plaintiffs leveled their accusations remained intent on maintaining its power at any cost and acted with impunity to do so.” Thus, held the appellate court, the trial court did not abuse its discretion by tolling the statute of limitations until the end of the civil war in 1992.[4]

The defendants did not request the U.S. Supreme Court to review the appellate court’s decision. As a result, the case is over except for the plaintiffs’ efforts to collect the $54.6 million judgment. So far they have collected $300,000.

Parenthetically, both of the former Generals in this case have been charged with violations of U.S. immigration laws.

In early 2009, Garcia was indicted by the U.S. government for illegally entering the U.S. with a Salvadoran passport he had obtained by fraudulently telling Salvadoran officials that he had lost his prior passport when in fact it had been seized by U.S. authorities and for falsely telling the latter officials his attorney had told him that the passport had been lost. In September 2009, the indictment was dismissed upon corroborated evidence that his attorney had given him advice about his ability to obtain a substitute Salvadoran passport.[5]

Casanova was charged with assisting or otherwise participating in torture in El Salvador as grounds for removal or deportation from the U.S. The removal hearing in Orlando, Florida took place in April and May 2011, and a decision is expected in early 2012.[6]

This case is also instructive on how to prove under the ATS or TVPA that superior officials had knowledge of human rights abuses by their subordinates.  One of the plaintiffs’ witnesses was a researcher at Amnesty International (AI) during the period in question.  He testified to its practice of Urgent Actions to solicit letters from AI members to government officials about human rights abuses in their countries, its Urgent Actions about El Salvador, and a response to one of the letters from one of the defendants thanking the letter-writer for his interest.[7] This experience suggests that organizations like AI should keep good records of its requests for letters to be sent to government officials and should develop a practice of keeping copies of such letters or urging the authors of the letters to keep copies.