Request for U.S. Records in Salvadoran Trial Over 1981 El Mozote Massacre

On December 10-12,1981, during the Salvadoran Civil War, 978 men, women and children were massacred in the country’s northeastern village of El Mozote, the largest mass killing in Latin America’s modern history. Of those victims, 447 were age 12 and under while 4 were unborn infants in their mothers’ wombs.[1]

Eventually it had become clear that  “the Salvadoran military’s Atlacatl Battalion was responsible for the massacre. But details were vague. The commanders of the Battalion remained free. So do the former senior defense officials who allegedly issued orders to the battalion. In the 1990s, the country approved an amnesty that protected war criminals. That law was declared unconstitutional in 2016 by a Salvadoran court, thereby clearing the way for reopening a Salvadoran criminal trial over this massacre.

Early Stages of Salvadoran Trial Over the Massacre[2]

Since that year (2016) a Salvadoran court has been conducting a trial of 16 former Salvadoran military commanders, including a former minister of defense, over this massacre. They are charged with murder, torture, aggravated rape, forced disappearances, forced displacement, acts of terrorism, illegal detention, theft and damages. The evidence implicated the involvement of the Atlacatl Battalion, which had been U.S.-trained, in contradiction of the original Salvadoran and American accounts of the massacre.

U.S. Congressional Decision To Help Salvadoran Trial[3]

In 2019 in establishing the annual budget for international aid, the Congress directed the U.S. Government to cooperate with El Salvador’s investigation of the El Mozote massacre in the following language:

  • “The [House] Committee [on Appropriations] directs the Secretary of State to work with the relevant federal departments and agencies to, as appropriate, assist the judicial authorities of El Salvador in the investigation and prosecution of those responsible for the El Mozote massacre. [This includes] the identification of and provision of related documents, correspondence, reproductions of Salvadoran documents, and other similar materials from January 1981 to January 1983.”
  • The Senate version stated, “The Secretary of State… shall encourage the Salvadoran Armed Forces to cooperate with prosecutors and investigators, including providing access to archival documents.” The bill also included a mandate for the Department of State to update its report on the current status of the Salvadoran trial.

In response to the Senate’s direction, the State Department on February 5, 2020, sent a letter to the Vice Chairman of the Senate Committee, Senator Patrick Leahy, with a report on the Salvadoran government’s cooperation with the court’s investigation.[4]

Recent Developments in Salvadoran Case[5]

In January 2020, a retired Salvadoran air force general, Juan Rafael Bustillo, testified in the trial that that the Atlacatl Battalion had carried out the massacre, which was the first time a Salvadoran military official had admitted such responsibility. He said he had not taken part in this event, but that it had been conducted on orders by Colonel Domingo Monterrosa, the commander of that Battalion who died in a 1984 helicopter accident.

After that testimony, the Salvadoran judge, Jorge Guzman Urquilla, concluded that the court did not have an important set of evidence: “U.S. documents that might shed light on how the massacre was planned and executed.”

 Salvadoran Judge’s Letter to U.S.Government[6]

As a result, the judge on January 27, 2020, sent a letter to  U.S. Secretary of State Michael Pompeo with copies to Defense Secretary Mark Esper, the Director of the Defense Intelligence Agency (DIA) Robert P. Ashley, Jr. and CIA Director Gina Haspel. The judge’s letter requested “at minimum, any document in the possession of the Department of Defense, the Defense Intelligence Agency (DIA), the Central Intelligence Agency (CIA), and other defense or intelligence agencies” relating to the El Mazote massacre. The letter stated the following:

  • “I recognize and am thankful for Congress’ initiative in asking the State Department to look into information that the United States may have on this case. As a judge, I would hope that it would provide me with greater certainty and clarity on these heinous acts that are now part of our country’s history, something we are not proud of, but which the historical record will demand we adjudicate.”
  • “The El Mozote trial is nearing the end of its investigative phase and will soon move to sentencing. Though some expert military testimony is forthcoming, the main phases of the examination portion have been completed. Service members, including several soldiers and a general, have given their accounts of the relevant events, confirming that the massacre took place as well as the role played by various units of the [Salvadoran] Armed Forces. A lack of documents is the last big hurdle. Despite [Salvadoran] President Nayib Bukele’s assurances that he will collaborate, the [Salvadoran] Army has stuck to the position it’s taken since the investigation began in the 1990s: that no relevant documents exist.”
  • “Even if they no longer can be found in El Salvador, it’s still possible that there are copies or records of these files in the United States, a country that was closely involved with and aware of the [Salvadoran] Army’s operations in the 80s as part of its foreign policy agenda.” Though a good deal of documents were already declassified [by President Bill Clinton in 1983], the letter also asked for “any other document that was not declassified by President William Jefferson Clinton or subsequent presidents.”
  • The letter also asked for “any other document that was not declassified by President William Jefferson Clinton or subsequent presidents” and for files on “the operations of the Armed Forces of El Salvador in the Morazán area, including any information on military planning, operational planning, and war planning, and involving any of the military units that I have mentioned,” between 1981 and 1983.
  • The letter specifically solicited information on General José Guillermo García, General Rafael Flores Lima, and 14 others who were charged and remain alive; on Colonel Domingo Monterrosa, Mayor Armando Azmitia, and 14 others who were charged and are now dead; on the municipality of Arambala and the seven sites where the massacre took place; and on the four military units being held responsible: the Atlacatl Battalion, the Third Infantry Brigade of San Miguel, the Fourth Military Detachment in San Francisco Gotera, and the High Command of the Armed Forces.
  • The letter emphasized the need to “move forward with this case in an expeditious manner” and asks Pompeo for a response “within the period of time set forth by the law.”

A journalist for elfaro, a Salvadoran online newspaper, apparently added, “Among the [U.S.] files declassified in 1993, for example, are several diplomatic cables between San Salvador and Washington from January 1981, which make clear that then-U.S. Ambassador Deane Hinton was consistently transmitting details about the operation that would ultimately result in the massacre. ‘[I]t is not possible to prove or disprove excesses of violence against the civilian population of El Mozote. It is certain that the guerrilla forces…did nothing to remove them from the path of battle… Civilians did die during Operation Rescate, but no evidence could be found to confirm that government forces systematically massacred civilians in the operation zone, nor that the number of civilians killed even remotely approached the number being cited in other reports circulating internationally,’ read an initial cable from Hinton, from January 1981.”

The elfaro journalist also said, “Later, in another communication, [Hinton] . . .  offered a different account of what may have taken place: ‘The estimated population of El Mozote during the massacre was about 300 inhabitants. The Atlacatl Battalion conducted Operation Rescate from December 6 to 17 of 1981. The guerrilla knew of the operation since November 15. The civilians present during the operation and the battles with the guerrilla may have been killed.’” Following Clinton’s declassifications, several agencies have continued providing documents in response to petitions from human rights organizations.

Additional support for U.S. production of such documents comes from an analyst for the U.S. National Security Archive, Kate Doyle, who believes the U.S. has additional relevant documents about the Salvadoran civil war that could and should be declassified.[7]

U.S. Government’s Response to the Judge’s Letter

To date, Secretary Pompeo has not responded to the court’s letter; nor have the three others copied on that letter. The subject came up again at a March 11th Salvadoran court hearing in the case when the judge said, ““This information could be very valuable to us. It could clarify what happened.” A State Department spokesman, however, said, “We do not comment on the Secretary’s correspondence.”

Conclusion

 Given the congressional demand that the U.S. cooperate with the Salvadoran investigation of the El Mozote massacre and the U.S. support of human rights by its recent publication of the  latest annual report about human rights in every country in the world and Secretary Pompeo’s proud creation of the Commission on Unalienable Rights, there is no excuse for any further delay in providing an affirmative response to the Salvadoran judge’s letter and the requested documents.

This conclusion is buttressed by the following words in the March 11, 2020, State Department’s report about human rights in El Salvador:[8]

  • “In February [2019], in a renewed effort to shield the perpetrators of war crimes and human rights abuses committed during the country’s 1980-92 civil war, a group of influential legislators proposed a draft national reconciliation law. Despite Constitutional Court rulings in 2016 and 2018 that expressly prohibited a broad and unconditional amnesty, the proposed bill would have granted amnesty to several high-level officials who enjoyed immunity from prosecution due to their positions in the recent administration of President Salvador Sanchez Ceren. Victims’ rights groups, other civil society actors, and the international community successfully campaigned against the proposed bill, and President-elect Bukele stated his strong opposition to an amnesty bill and expressed his support for additional consultation with victims. On May 29, [2019] the Inter-American Court of Human Rights ordered the government to immediately suspend consideration of the proposed law. The proposed bill eventually lost support among legislators and failed to reach a floor vote.” (Section 2.E)
  • “Despite a June 2018 Constitutional Court order directing it to release military records related to the El Mozote killings and serious civil war crimes, the Ministry of Defense had not produced the requested documentation as of November 12 [2019]. On November 1, President Bukele stated that he was committed to the truth and that he would release the records. Previously, the Ministry of Defense claimed the El Mozote archive records were destroyed in an accidental warehouse fire. Civil society and victims’ groups continued to press for release of these archives.” (Section 2.E)
  • “On April 23, [2019] the judge in the El Mozote prosecution issued an order adding three new charges against the 16 remaining defendants: Torture, forced disappearance, and forced displacement. He also imposed several provisional measures on the defendants, including a prohibition on leaving the country or contacting victims, and a requirement that the defendants physically appear in court biweekly. The defendants appealed these rulings, which were affirmed by an intermediate appellate court. On February 14, [2019] the Legislative Assembly approved a transitory law establishing mechanisms designed to allow family members to be added to the El Mozote victims’ registry.” (Section 2.E)

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[1] See generally list of posts in the “El Mozote Massacre” section of List of Posts to dwkcommentaries—Topical: EL SALVADORThe massacre of children and others at El Mozote, El Salvador Perspectives (Dec. 10, 2017); Posts about El Mozote. El Salvador Perspectives.

[2] Zabiah, El Mozote judge asks the United States for confidential documents on the massacre, elfaro (Mar. 5, 2020) (Zabiah #1).

[3] Zabiah # 1, supra; H. Rep., 116th Congress, 1st Sess., Rep. 116-78, State, Foreign Operations, and Related Programs Appropriations Bill, 2020 (May 20, 2019); H. Rep., Appropriations Committee Releases Fiscal Year 2020 State and Foreign Operations Funding Bill (May 5, 2019); H. Rep. Comm. on Appropriations. Public Witness Hearing: State, Foreign Operations, and Related Programs (Mar. 12, 2019).

[4] Letter, State Dep’t to Senator Leahy (enclosing three-page report) (Feb. 5, 2020)(hyperlinked to Zabiah #1, supra).

[5] Zabiah #1, supra; Zabiah, General Bustillo breaks the officers’ script and admits that ‘rudeness’ occurred in El Mozote, elfaro (Jan. 26, 2020); Schwartz, What the El Mozote Massacre Can Teach Us About Trump’s War on the Press, The Intercept (Jan. 28, 2020); El Salvador general admits army carried out El Mozote massacre, Aljazeera (Jan. 25, 2020); Pierce, It’s a Bull Market for Bashing the Press. Under Conservative Governments, It Often Has Been, Esquire (Jan.27, 2020); Renteria, Salvadoran general admits army carried out infamous 1981 massacre, Reuters (Jan. 24, 2020).

[6] Zabiah #1 , supra.

[7] Alvarado, “The attorney general can ask the United States for information about El Mazote,” elfaro (Mar. 23, 2018).

[8] State Dep’t, 2019 Country Reports on Human Rights Practices: El Salvador (Mar. 11, 2020).

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dwkcommentaries

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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