Former Salvadoran Vice-Minister of Defense Held Liable by U.S. Courts for $6 Million for Torture and Extrajudicial Killing

On November 27, 1980, Manuel Franco and five other leaders of the Frente Democratico Revolucionario (FDR), a group opposed to the Salvadoran government, were abducted in San Salvador and then tortured and executed.  The Truth Commission for El Salvador found that these crimes had been committed by one or more of the country’s public security forces and that the Salvadoran Treasury Police aided and abetted the violations.[1]

Nicolas Carranza

In 2003, the San Francisco-based Center for Justice and Accountability filed a case on behalf of relatives of these six deceased political leaders in a federal court in the State of Tennessee under the U.S. Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The defendant was former Colonel Nicolas Carranza, a naturalized U.S. citizen living in Tennessee, who was Vice-Minister of Defense of El Salvador from late 1979 to early 1981. In that position, he had exercised command and control over the three units of the Security Forces — the National Guard, National Police and Treasury Police.[2]

In late 2005, a civil jury after a three-week trial found Mr. Carranza liable to four of the five Salvadoran plaintiffs for $6 million in compensatory and punitive damages for crimes against humanity, extrajudicial killing and torture. A federal appeals court in early 2009 upheld that verdict.[3] Three aspects of this case are especially noteworthy.

First, the trial court determined that the U.S. 10-year statute of limitation was equitably tolled so that the case was not barred even though it was bought at least 20 years after the events in question.[4] The appellate court affirmed this holding.[5]

Second, the trial court determined that the Truth Commission Report was admissible into evidence under the public records exception to the hearsay rule that generally excludes out-of-court statements offered to prove the truth of the matter asserted in the statement. This was the conclusion after determining that the Commission was a “public office or agency,” that the Report set forth “factual findings” as a result of an “investigation made pursuant to authority granted by law,” that it met the standards of “trustworthiness” and that there was no evidence of bias in the Commission’s methodology or conclusions. The court then concluded that the Report’s discussion of the abduction, torture and execution of Franco and the other five FDR leaders was not contradicted by any other evidence and, therefore, granted partial summary judgment to Franco’s widow on the her claim for extrajudicial killing.[6] The appellate court affirmed this ruling.[7]

Third, the trial court twice rejected the defendant’s argument that the Salvadoran General Amnesty Law barred the U.S. lawsuit after the court concluded that said law did not purport to bar claims outside El Salvador.[8] Again the appellate court affirmed this ruling.[9]

On October 5, 2009, the U.S. Supreme Court declined to review the case.[10] The unsuccessful arguments that were advanced for such review, however, are interesting.

Mr. Carranza told the Supreme Court that the lower court’s refusal to bar the suit constituted “an unwarranted intrusion into the sovereign affairs” of El Salvador and undermined “the very vehicle of [its] transformation from a war torn charnel house to a robust democracy.” Moreover, after pointing out that the Truth Commission Report also provided findings on crimes perpetrated by the FMLN, including the assassination of four unarmed U.S. Marines, Carranza argued that the Supreme Court should consider “the implications of adjudicating monetary claims on behalf of members of groups committed to killing American soldiers.”[11]

Carranza’s petition to the U.S. Supreme Court was supported by the Government of El Salvador (then under the control of the ARENA political party). It argued that the ruling of the lower courts “impugns El Salvador’s sovereignty, contradicts international authority, and undermines El Salvador’s democracy.” Ignoring  its own January 1992  Law of National Reconciliation that had banned amnesty for those found responsible by the Truth Commission until at least six months after its Report was released, the Government falsely asserted that the amnesty law “was a principal, if not the pivotal, requirement of the [Peace Accords].”[12]

In addition, the Government of El Salvador told the U.S. Supreme Court that the plaintiffs had failed to exhaust their remedies in the Salvadoran courts as its Supreme Court had held in 2000 that the country’s courts had discretion to waive the immunity of the amnesty law in particular cases involving “fundamental human rights.”[13] This was a new argument, however, that should not be permitted in the appellate process. In the Sixth Circuit Court of Appeals, the Government of El Salvador, again as amicus curiae, did not mention the possible discretionary waiver of the amnesty law by Salvadoran courts and instead asserted that the amnesty law “specifically precludes the [plaintiffs’] claims . . . by granting absolute civil and criminal immunity to . . . Carranza.”[14]

In opposition to the request for Supreme Court review, the plaintiffs said that Carranza now was arguing inconsistently for his immunity in the U.S. case and for his non-immunity in the hypothetical Salvadoran case if the Salvadoran courts were to exercise their discretion to waive the immunity law. Moreover, according to the plaintiffs, Carranza in the trial court had conceded that plaintiffs had exhausted their Salvadoran remedies because the amnesty law would bar such a lawsuit in that country, and then Carranza failed to prove that he was entitled to immunity in the U.S. case.[15]


[1]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador at 58-6266 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html.

[2]  CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[3]  Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009), pet. for cert. filed, 77 U.S.L.W. 3670 (U.S. Sup. Ct. May 28, 2009) (No. 08-1467); CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[4]  Chavez v. Carranza, 407 F. Supp. 2d 925, 927-30 (W.D. Tenn. 2004); Chavez v. Carranza, 2005 WL 2659186,  at 2-3 (W.D. Tenn. 2005).

[5]  Chavez v. Carranza, 559 F.3d at 491-94.

[6]  Chavez v. Carranza, 413 F. Supp. 2d 891, 903-04 (W.D. Tenn. 2005); Fed. R. Evid. 801 (c), 803 (8).

[7]  Chavez v. Carranza, 559 F.3d at 496.

[8]  Chavez v. Carranza, 2005 WL 2659186, at 3-5 (W.D. Tenn. 2005); Chavez v. Carranza, 2006 WL 2434934, at 5 (W.D. Tenn. 2006). See also Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011); Post: El Salvador’s General Amnesty Law in U.S. Federal Courts (June 14, 2011); Post: The Current Controversy Over El Salvador’s General Amnesty Law and Supreme Court (June 16, 2011).

[9]  559 F.3d at 494-96. The plaintiffs’ argument against the amnesty law was supported in the Sixth Circuit by a group of law professors. (Law Professors Amici Brief.)

[10] Carranza v. Chavez, 2009 WL 1513107 (U.S. Sup. Ct. Oct. 5, 2009).

[11]  Petition for Writ of Certiorari, Carranza v. Chavez, 2009 WL 1511732 (U.S. Sup. Ct. No. 08-1467 May 28, 2009).

[12]  Brief of Amicus Curiae Republic of El Salvador in Support of Petitioner [Carranza], Carranza v. Chavez, 2009 WL 1511733, at 2 (U.S. Sup. Ct. No. 08-1467 May 28, 2009).

[13]  Id.

[14]  Brief of Amicus Curiae The Republic of El Salvador in Support of Appellant [Carranza] at 1, 3, Chavez v. Carranza (6h Cir. Apr. 22, 2008) (emphasis added).

[15]  Brief for Respondents Chavez, et al., at 1-2, 5, 7, 9-10, Carranza V. Chavez  (U.S. Sup. Ct. No. 08-1467 June 29, 2009). In reply, Carranza essentially repeated his previous arguments. Reply Brief of Petitioner, Carranza v. Chavez, (U.S. Sup. Ct. No. 08-1467 July 15, 2009).

 

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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