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),

[2]  CJA, El Salvador: Col. Nicolas Carranza,

[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,

[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).


U.N. General Assembly Again Condemns U.S. Embargo of Cuba

On October 25, 2011, the United Nations General Assembly debated a resolution: “Necessity of ending the economic, commercial, and financial embargo imposed by the United States of America against Cuba.” It passed, 186 to 2 with 3 abstentions. Only Israel joined the U.S. in opposition while three small  Pacific island nations – Palau, Marshall Islands, and Micronesia – abstained.[1]

During the debate, the Cuban Foreign Minister Bruno Rodriguez said that the sanctions have caused direct economic damages of close to $1 trillion to the Cuban people over nearly half a century. In response, the U.S. Senior Area Adviser for Western Hemisphere Affairs, Ronald D. Godard, said the embargo is a bilateral issue and “not appropriately a concern of this assembly.” Godard added that the sanctions represent “just one aspect of U.S. policy toward Cuba, whose overarching goal is to encourage a more open environment in Cuba and increased respect for human rights and fundamental freedoms.”

Before this year’s vote the U.N. Secretary-General, pursuant to a provision of last year’s resolution on the subject, invited U.N. members and agencies to comment on the embargo for a report by the Secretary-General. [2] Of the 193 U.N. Members, 142 (of 73.6%) responded, all criticizing the embargo as did the 20 U.N. agencies that replied; the U.S. and Israel did not comment. [3] Here are some of the strongest statements on the subject:

  • Australia. “Since 1996, the Government of Australia has consistently supported General Assembly resolutions calling for an end to the trade embargo against Cuba. Australia has no trade or economic legislation or measures which restricts or discourages trade or investment to or from Cuba.”
  • Brazil. “The Brazilian Government has consistently opposed the economic, commercial and financial embargo imposed against Cuba. Accordingly, Brazil has also continued to foster and pursue a growing economic relationship with Cuba. . . . The maintenance of the economic, commercial and financial embargo against Cuba is inconsistent with the dynamic regional policy that has recently been marked by the return of Cuba to dialogue and cooperation forums of the Americas.”
  • China. “This [embargo] is not only a serious violation of the purposes and principles of the Charter of the United Nations and of relevant United Nations resolutions, but also a source of immense economic and financial losses for Cuba. It is an impediment to efforts by the Cuban people to eradicate poverty, to promote their economic and social development and to attain the Millennium Development Goals, it impairs the Cuban people’s right to survival and development, and it adversely affects normal economic, commercial and financial relations between Cuba and other countries.”
  • European Union. “…the European Union and its member States have been clearly expressing their opposition to the extraterritorial extension of the United States embargo, such as that contained in the Cuban Democracy Act of 1992 and the Helms-Burton Act of 1996.”
  • Holy See. “The Holy See has never drawn up or applied economic, commercial or financial laws or measures against Cuba.”
  • Japan. “Japan shares the concern, arising from the . . . (the Helms-Burton Act) and the Cuban Democracy Act of 1992, that, if application of such legislation causes undue hardship in relation to the economic activities of the enterprises or nationals of a third party, the legislation is likely to run counter to international law regarding the extraterritorial application of domestic laws.”
  • Mexico. “Mexico emphasizes that [the embargo] has serious humanitarian consequences that are contrary to international law and, moreover, signify the abandonment of diplomacy and dialogue as the appropriate ways of settling disputes between States. . . . The Government of Mexico has also consistently opposed Cuba’s economic and political-diplomatic isolation. It has therefore firmly supported Cuba’s inclusion in all regional integration machinery in order to promote economic and commercial exchange, cooperation and development.”

This is the twentieth straight year the General Assembly overwhelmingly has adopted a resolution condemning the U.S. embargo. In 2010, for example, a resolution that called upon the U.S. to repeal the embargo was approved by 187-2, again with only Israel joining the U.S. in opposition and the same three Pacific island nations abstaining.

Here are some of the reasons why the U.S. should end the embargo:

  1. The embargo undermines U.S. foreign policy interests. It undermines the empowerment of Cuban citizens, harming them economically and depriving them of choices that could emerge from greater U.S. engagement with Cuba. (Steve Clemons, Washington Editor-at-Large, The Atlantic and Senior Fellow & Founder, American Strategy Program, New America Foundation.)
  2. The embargo hurts U.S. national security interests . It prevents normal trade and travel between our two countries. It prevents cooperation with Cuba on common security issues such as crime and terrorism. It hurts U.S. standing throughout the world by highlighting our aggression against a neighboring country that poses no threat. (John Adams, Brigadier General US Army (Retired).)
  3. The Cuba embargo runs counter to our experiences with China and Viet Nam. Both countries have Communist systems, and we fought a war with Viet Nam. Yet we trade with both. (John R. Block, Secretary of Agriculture under President Ronald Reagan and officer with Olsson Frank Weeda Terman Bode Matz PC0.)
  4. The embargo isolates the U.S. government and cuts off contact between Cubans and Americans . The embargo isolates and weakens U.S. policy makers and U.S. policies at a time of increasing integration between Latin America and the Caribbean and the global south. U.S. citizens are denied ready access to highly praised Cuban achievements in the arts and culture, education, medical and technological advances, and deprived of sustained engagements with Cuban citizens and the Cuban government to share our national virtues. (James Early,Trustee, Institute for Policy Studies, and Director of Cultural Heritage Policy, Smithsonian Center for Folklife and Cultural Heritage.)
  5. The embargo undermines the image of the United States throughout the world. The embargo is senseless and irredeemable. It is the act of a bully, based on pique. It is an abysmal moral and political failure, diminishing not Cuba but the U.S. in world opinion and respect. It has achieved the opposite of what it has sought, hurting both the Cuban people as well as U.S. interests. The embargo is opposed by virtually the entire world as well as large domestic majorities, even Cuban exiles and dissidents; yet, the U.S. government persists with its petty punitive policy, not out of reasoned principle but for internal political posturing. (Rubén G. Rumbaut, ENCASA/US-CUBA, University of California, Irvine.)
  6. The embargo imposes great suffering on Cubans . The embargo continues to inflict gratuitous and pointless suffering on the Cuban people. Children dying from cancer are denied access to potentially life-saving drugs, heart patients cannot get U.S. manufactured pace-makers, and Cuba’s cutting-edge biotechnology institutes that provide important drugs at an affordable price to the rest of the world are denied the U.S. substrates they need. (Peter Bourne, Chairman of the Board, Medical Education Cooperation with Cuba (MEDICC).)
  7. The embargo hobbles our ability to protect the environment . Oil drilling in Cuban waters creates an unprecedented urgency to rethink U.S. policy toward Cuba. An oil spill in Cuba could be disastrous to shorelines, marine life, coastal communities and livelihoods in both countries. The U.S. should eliminate political and legal obstacles that hinder its ability to share expertise if an emergency occurs in shared waters. The Obama Administration has taken some positive steps to promote scientific exchange and dialogue on environmental protection with Cuba. Environmental diplomacy-done right and carried out in good faith-can lay a foundation for real and lasting improvement in Cuba-U.S. relations. (Daniel Whittle, Senior Attorney and Cuba Program Director, Environmental Defense Fund.)
  8. The embargo is not about principle; it’s about politics . The embargo is an international embarrassment to a country that continues to claim leadership in the realm of human rights. An unnecessary and sickening relic of the Cold War, the embargo has become a political football proving that elections – and electoral votes – mean more to American politicians than fairness, justice, the human needs of the Cuban people or the lives, health and education of Cuban children. (Mike Farrell, Actor and human rights advocate.)
  9. Ending the embargo would be doing the right thing. It is time for President Obama and Congress to do the right thing, cast off the failed embargo of Cuba, and embrace a policy of engagement that will provide economic opportunities for U.S. farmers and businesses as well the workers they employ. Doing the right thing will improve economic conditions in both the U.S. and Cuba and will also over time contribute to greater social stability in the Caribbean region. (Cal Dooley, President and CEO, American Chemistry Council.)
  10. 10.   Ending the embargo is long overdue . Lifting the U.S. embargo against Cuba is long overdue. (Katrin Hansing, Associate Professor of Black and Hispanic Studies at Baruch College (CUNY).)

[1] Assoc. Press, UN Condemns US Embargo of Cuba–Again, N.Y. Times (Oct. 25, 2011); Latin America Working Group, UN Cuba Vote–Happy 20th Anniversary (Oct. 25, 2011); CubaCentral Newsblast (Oct. 21, 2011). See also Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011); Post: U.S. Repeats Its Ridiculous Designation of Cuba as a “State Sponsor of Terrorism” (Aug. 21, 2011); Post: The U.S. Should Pursue Reconciliation with Cuba (May 21, 2011); Post: Commutation and Release of Convicted “Spies” (Sept. 24, 2011); Post: Roots for Hope for U.S.-Cuba Relations (Sept. 27, 2011); Comment: Cuban Foreign Minister Attacks U.S. Policies (Sept. 28, 2011); Post: President Obama Is Wrong on Cuba (Sept. 29, 2011); Comment: Obama and Romney Out of Touch on Cuba Oct. 15, 2011); Post: U.S. and Cuba Discuss Exchange of Prisoners (Oct. 14, 2011); Comment: Cuban-Americans in Congress Criticize U.S. Willingness To Discuss Issues with Cuba (Oct. 15, 2011).

[2] U.N. Gen. Assembly Res. 65/6 (Nov. 23, 2010).

[3] Report of U.N. Secretary-General, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba (Aug. 16, 2011).

Perryite Laments Misuse of His Hometown by Michelle Bachmann

I grew up in Perry, Iowa. I know Perry, Iowa.[1] And Michelle Bachmann is no Perryite.

Last week she chose my hometown to sign a pledge to construct a fence on the entire U.S.-Mexico border and to criticize Texas Governor Rick Perry’s immigration policies or actions. She said she chose to do this in this Iowa town because its population is now 32% Hispanic due to a meat-packing plant in the town and because it just happens to have the same name as her Republican rival.[2]

When I was growing up in the town in the 1950’s there were no Hispanics and very few black people. It was a very plain “white bread” place. But it was not a town of bigots. It has produced many people who now live in the town and many different parts of the U.S. and the rest of the world and who quietly contribute to making the world a better place.

Mrs. Bachmann, quit spreading your views in Perry, Iowa and elsewhere! I am happy your campaign fundraising is falling off. Soon, I hope, you will be forced to exit the national stage.

[1]  Post: Growing Up in Small Town Iowa (Aug. 23, 2011).

[2]  Glover, Michelle Bachmann Pledges Border Fence with Mexico, Blasts Rick Perry Over Immigration, www. huffingtonpost (Oct. 15, 2011)(dateline: Perry, Iowa); Gabriel, For Bachmann, a Bid to Reconnect in Iowa, N.Y. Times (Oct. 17, 2011)(dateline: Perry, Iowa).



Remembering Oscar Romero at Westminster Abbey

Westminster Abbey, London, UK
Romero Statue, Westminster Abbey, London, UK

In 1998 Westminster Abbey in London opened its gallery of Christian Martyrs of the Twentieth Century. Their 10 statues are set in outside niches above the main entrance. The Abbey did so to proclaim that the 20th century was one of Christian martyrdom greater than in any previous period in the history of the church.[1]

In niche number 6 is the statue of Oscar Romero. He stands between the statues of Dr. Martin Luther King, Jr., the great U.S. civil rights leader and preacher, and Dietrich Bonhoeffer, the German Lutheran pastor and theologian who was executed by the Nazi regime just before the end of World War II for his involvement in a plot to assassinate Adolph Hitler.[2]

The biographical essay about Romero in a book about this gallery of martyrs is by Philip Berryman, an U.S. liberation theologian and leading authority on Christianity in Central and South America.

Berryman was in El Salvador in March 1980 and heard Romero’s famous homily ordering the military to stop the repression. Immediately afterwards, Berryman said he expressed his amazement at Romero’s boldness in saying what the Salvadoran military officers must have thought was treasonous. The next day when Berryman heard that Romero had been shot, he rushed to the hospital only to find out that Romero had died. Shortly after the assassination, he reports that Ignacio Ellacuria, the Rector of the Universidad de Centro America (UCA), celebrated a mass and said that with Archbishop Romero, God had visited El Salvador.[3]

Berryman recounts the familiar story about Romero’s being conservative and soft-spoken when he was appointed Archbishop in early 1977 and being converted to social and political justice after the murder of his friend, Father Rutilio Grande. To the same point, he quotes another friend of Romero, Jesuit priest and liberation theologian at UCA, Jon Sobrino, who said that when Romero gazed “at the mortal remains of Rutilio Grande, the scales fell from his eyes. Rutilio had been right! The kind of pastoral activity, the kind of church, the kind of faith he had advocated had been the right kind after all. . . .  [I]f Rutilio had died as Jesus died, if he had shown that greatest of all love, the love required to lay down one’s very life for others–was this not because his life and mission had been like the life and mission of Jesus? . . . Ah then, it had not been Rutilio, but Oscar who had been mistaken! . . .  And Archbishop Romero , , , [made] a decision to change.” In short, Grande’s life and death gave Romero a new direction for his life and the strength to pursue it.[4]

Romero, according to Berryman, prepared his homilies in consultation with a team of priests and lay people to review the situation in the country. Then he would write the homily from his notes, the newspapers of the week and the Biblical texts and commentaries. The homilies themselves usually lasted about 45 minutes, mostly devoted to a systematic and thematic reflection on the Biblical texts for the day, but also with Romero’s observations on the human rights violations of the prior week.[5]

Berryman also comments on the strained relationship between Romero and the U.S. government. Early in 1978, for example, Romero met with Terrance Todman, the U.S. Under-Secretary of State for Inter-American Affairs, who urged Romero to have a less confrontational and more constructive relationship with the Salvadoran government. Romero immediately responded that the U.S. and Rodman did not understand what was happening in El Salvador. “The problem is not between Church and government, it’s between government and people. . . . It’s not the church, much less the archbishop! If the government improved its treatment of the people, we will improve our relations with the government.”[6]

The Anglican Dean of Westminster Abbey came to El Salvador for the 20th anniversary of Romero’s assassination in 2000 and participated in a mass at the El Salvador de Mundo (the Savior of the World) traffic circle lead by the Roman Catholic Archbishop of Los Angeles. I cried during the service when Salvadorans passed the peace to me after all my country had done to support the Salvadoran government during their civil war.

[1] Andrew Chandler, Christian Martyrs of the Twentieth Century (Westminster Abbey; London 1999); Andrew Chandler (ed.), The Terrible Alternative–Christian Martyrdom in the Twentieth Century (Cassell; London 1998).

[2] Christian Martyrs of the Twentieth Century at 3, 8, 10, 13.

[3]  The Terrible Alternative at 159-60. Father Ellacuria, of course, was one of the six Jesuit priests murdered by the Salvadoran military in November 1989. (See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).)

[4]  Id. at 160, 164-65; Jon Sobrino, Archbishop Romero: Memories and Reflections at 9-10 (Orbis; Maryknoll, NY 1990); Post: Oscar Romero, A Saint for All People and All Time (Oct. 5, 2011). Jon Sobrino, whom I met at UCA in April 1989, escaped being murdered with his fellow Jesuits in November 1989 because he was lecturing in Southeast Asia. (Jon Sobrino, Ignacio Ellacuria, et al., Companions of Jesus: The Jesuit Martyrs of El Salvador at 4-9 (Orbis Books; Maryknoll, N.Y. 1990).)

[5]  The Terrible Alternative at 167-68.

[6]  Id. at 170.

Remembering Oscar Romero in Film

 Oscar Romero is remembered in music.[1] So too is he remembered in three films.

Oliver Stone in his 1986 film Salvador stars actor James Wood as U.S. journalist Richard Boyle who goes to El Salvador to report on the violence of the early years of its civil war. It includes the famous portion of Oscar Romero’s homily of March 23, 1980. Woods was nominated for an Oscar for his role as were Stone and Boyle for their screenplay.[2]

The biographical film Romero from 1989 was produced by the Paulist Fathers, and in one sense it is a Christian evangelical film designed to convert people to Christianity as lived by Romero.

Staring Raul Julia as Romero, the film accurately shows the new Archbishop in 1977 as a man singularly unsuited for high office, particularly in such a time of crisis. By nature timid, bookish, and retiring, he had no presence, no political instincts, no sense of moral authority. Romero, however, had one important “virtue” at the start of his service as Archbishop–in the eyes of El Salvador’s wealthy oligarchy, military officials and other Salvadoran bishops: he was noncontroversial.[3]

What no one anticipated — including Romero himself — was how he would respond when horrible things happened. Less than a month into his office, demonstrators in the main plaza of San Salvador were surrounded by police forces, and some were killed. Days later, Romero was stunned when his friend, Father Rutilio Grande, who was known for his advocacy of reform and social justice, was assassinated, along with an old man and a young boy accompanying him to Mass. The film shows Romero’s increasing courage in denouncing the human rights violations in his country and includes his homily asking President Jimmy Carter to stop military aid and the most famous homily in which he says to men in the military, “I beg you, I implore you. I order you in the name of God: Stop the repression!”[4]

"Romero" film in Plaza Libertad, March 2000

When I was in El Salvador for the 20th anniversary of Romero’s assassination in March 2000, the Romero film was being shown for the first time in the country. In Plaza Libertad in front of the Cathedral the film was playing in continuous loop on television monitors. Many people were watching the film as I walked through the plaza.

Rutilio Grande Memorial
Misa para Rutilio Grande, March 2003

The mention of Father Grande reminds me that in March 2003 I attended his 25th memorial mass in the village of El Paisnal, where he served near the town of Aguilares. On the road to the village we stopped to pay our respects at the memorial where he was assassinated. Interestingly the priest at the church in 2003, Father Orlando, was a former banker and a relative of Grande’s.

A third film, a documentary, about Romero entitled “Romero by Romero” was premiered in San Salvador in March 2010 as part of the Romero anniversary celebration. I was especially touched to see scenes of Romero walking around a poor neighborhood and warmly greeting and touching the people he met without a lot of ceremony. This was the film promised by the Funes Administration at the November 2009 hearing at the Inter-American Commission on Human Rights. (Post: Oscar Romero’s Assassination Case in the Inter-American Commission on Human Rights (Oct. 13, 2011); Tim’s El Salvador Blog, Romero’s life documented in film and video, (Mar. 17, 2010) (includes YouTube trailer for the film).)

[1] Post: Remembering Oscar Romero in Music (Oct. 14, 2011).

[2] Wikipedia, Salvador (Film),; Post: Oscar Romero, A Saint for All People and All Time (Oct. 5, 2011).

[3] Decent Films Guide, Romero (1989),; Wikipedia, Paulist Fathers,

[4]  Decent Films Guide, Romero, supra; Post: Oscar Romero, A Saint for All People and All Time (Oct. 5, 2011).

U.S. and Cuba Discuss Exchange of Prisoners

One of the so-called Cuban Five recently completed his sentence in U.S. prison and is now on probation in the U.S. and not permitted by the court to return to Cuba.[1]

We now learn that the U.S. offered to allow this individual with dual U.S.-Cuban citizenship to return to Cuba in exchange for his renouncing his U.S. citizenship and Cuba’s release of imprisoned U.S. citizen, Alan Gross. Another part of the offer was U.S. stated willingness after the exchange of these two individuals  to discuss certain other issues between the two countries, including removal of Cuba from the U.S. list of state sponsors of terrorism;[2] reducing spending on Cuban democracy promotion programs like the one that led to the U.S.’ hiring of Gross; authorizing U.S. companies to help Cuba clean up oil spills from Cuba’s planned offshore drilling; improving postal exchanges; ending a program that makes it easier for Cuban medical personnel to move to the U.S.; and licensing the French company Pernod Ricard to sell Havana Club rum in the United States.[3]

This is a positive development.[4]

Cuba, however, rejected this offer on the ground that the Cuban now on probation had already served his prison sentence. Instead Cuba is reported to have counter-offered to release Gross in exchange for the U.S. pardoning some or all of the Cuban Five.[5]

This too is a positive development in keeping open the possibility of further negotiations between the two countries on the many accumulated issues burdening their relationship.

However, if the reports are correct that Cuba was seeking “pardons,” then it was asking for something that is not legally or politically possible. Federal pardons are theoretically available only to federal felons who have completed their sentences and are rarely granted as they involve collateral benefits under U.S. law. As the other four Cubans have not completed their sentences, they are not eligible for pardons. A commutation of sentence, on the other hand, reduces the period of incarceration; it does not imply forgiveness of the underlying offense, but simply remits a portion of the punishment. It has no effect upon the underlying conviction and does not necessarily reflect upon the fairness of the sentence originally imposed.The other four Cubans are eligible for clemency or commutations. [6]

I hope the U.S. and Cuba continue these preliminary discussions and reach an agreement on commuting the sentences of the Cuban Five and Alan Gross and allowing all of them to return to their home countries.

[1] See Post: Commutation and Release of Convicted “Spies” (Sept. 24, 2011); Post: Roots of Hope for U.S.-Cuba Relations (Sept. 27, 2011); Comment: Cuban Foreign Minister Attacks U.S. Policies (Sept. 28, 2011)(Comment to prior Post); Post: President Obama Is Wrong on Cuba (Sept. 29, 2011).

[2]  See Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism”  (May 20, 2011); Post: U.S. Repeats Its Ridiculous Designation of Cuba as a “State Sponsor of Terrorism”  (Aug. 21, 2011).

[3] Assoc. Press, AP Sources–US Offered Cuba Swap for American, N.Y. Times (Oct. 14, 2011).

[4] See Post: The U.S. Should Pursue Reconciliation with Cuba (May 21, 2011).

[5]  See n.3.

[6]  U.S. Dep’t of Justice, Office of the Pardon Attorney,

The Abominable Rules of the U.S. Senate Are Modified

   The Rules of the U.S. Senate improperly thwart the rule of the majority.[1]

Last week another facet of those Rules raised its ugly head. In response there was a modest indirect change to the rules that facilitates the Senate’s being able to act on measures on the merits.[2]

At least sixty-two Senators, including 11 Republicans, had voted to end debate on a bill to impose sanctions on China for failure to revalue its currency. Under a Rule that allows consideration only of proposed amendments that the parties agree to be considered after cloture, there was an agreement for consideration of seven such amendments for the Chinese currency bill.

Senator Mitch McConnell

Republican Senate Minority Leader Mitch McConnell then made ten motions to suspend the rules to allow introduction, debate and voting on unrelated amendments. Under the Senate Rules, such a motion to suspend the rules requires a two-thirds vote (67 Senators).

In response to one of the motions to suspend the rules, Democratic Senate Majority Leader Harry Reid raised a point of order that such a motion was not permitted. The Senate Parliamentarian speaking through the chair of the Senate rejected the point of order and thereby allowed consideration of the motion to suspend. Reid then appealed the ruling of the chair to the entire Senate, and the Senate by a simple majority vote sustained the appeal and thereby overruled the Parliamentarian and barred the motion to suspend the rules.

Senator Harry Reid

I am against the Senate Rule that requires at least 60 votes to end debate on a measure and another Senate Rule that requires a two-thirds vote (67) to change the Rules. I, therefore, am pleased to see this very modest indirect modification of the Rules to improve the ability of the Senate to act on measures on the merits.

But maybe it is not such a modest change. Senators are now “abuzz” about the previously rarely used tactic of challenging the Parliamentarian’s rulings. Texas Senator John Cornyn, Chairman of the National Republican Senatorial Committee, is reported to have said, “If we get in the majority, in which I anticipate we will, this completely freezes out the minority, which is where the Democrats will find themselves.” There is speculation that it may make Republicans in the current Senate less willing to break a filibuster if Senator Reid does not agree to allow their amendments for votes.[3]

Senator Reid reportedly is trying to soothe tensions by inviting Republican Senators to join Democrats in a rare bipartisan closed-door meeting to discuss these arcane issues of Senate Rules and procedure.[4]

In the meantime, on October 11th, the Senate by a vote of 63 to 35 (with 16 Republicans) passed the bill that would require the U.S. Treasury Department to determine if China was improperly valuing its currency to gain an economic advantage and if such a determination were made to order the U.S. Commerce Department to impose stiff tariffs on certain Chinese goods.[5]

That vote, however, is not the end of that story. Another version of a bill on Chinese currency passed the House of Representatives, 348 to 79, in 2010 while the Democrats still controlled that body. Now House Republicans in the majority do not intend to bring the Senate bill to the floor. The White House probably is pleased with this stalemate because it is concerned about the impact of such a bill on the many issues between the U.S. and China. Not surprisingly China has threatened a trade war if the bill becomes law.[6]

[1] See Post: The Abominable Rules of the U.S. Senate (April 6, 2011).

[2] Sonmez, Senate makes unprecedented rules changes amid late-night debate over jobs, procedure, (Oct. 7, 2011); Reid, Trying to restore Senate comity, (Oct. 10, 2011); Editorial, Chipping Away at Gridlock, N.Y. Times (Oct. 10, 2011).

[3] Raju, Is 51 the new 60 under Senate rules?, (Oct. 11, 2011).

[4] Id.

[5]  Steinhauer, Senate Jabs China Over Its Currency, N.Y. Times (Oct. 11, 2011).

[6]  Id.; Liberto, Senate passes China currency bill, (Oct. 11, 2011).