PPE Examinations at Oxford

As indicated in my discussion of “reading” PPE (Philosophy, Politics and Economics) at Oxford,[1] the examinations were given at the end of a student’s time at the University. For me, that was early June 1963.

Examination Schools Building

For the examinations, University statutes required the students to wear sub-fusc (Latin: dark/dusky color) clothing. For men, this meant dark suit and socks; black shoes; white shirt and collar; white bow tie; and academic gown and cap. Riding my bicycle to the exams with all of this regalia made me feel special, for most of the people you passed knew from your garb that you were “taking Schools.” The examinations were given in a late 19th century University building called The Examination Schools on High Street in the city. Thus, the exams colloquially were called “Schools.”

The examinations were prepared, and evaluated, by a university-wide committee, and if one of your tutors happened to be on the committee, he or she was barred from grading your answers.

For PPE there were eight three-hour exams given over two weeks. Six of them were in the required subjects. The other two exams were in the student’s optional papers.

Each of the examinations had the same format. You had to answer four questions on a printed sheet of 13 to 16 questions. At the time, I thought they were the fairest exams I had ever encountered because they eliminated the chance that even though you knew the subject and had engaged in diligent preparation, you would be hit with a question for which you were not prepared. As I look back on the experience 48 years later, I could see how this format could be nerve-racking and force a student into wasting a lot of time figuring out which four questions to answer. This, however, was not my plight. I believe that I quickly read the complete list of questions and first picked the question for which I was most prepared and answered that one. Then I looked at the remaining questions and picked another question for which I was prepared and answered that one until I had answered four questions. As I reflect now on that experience, I can see a tactical problem of pacing yourself so that you did not spend too much time answering the questions for which you were best prepared.

Here is a sample of the 32 questions that I answered on the PPE examinations in June of 1963:

  • General Philosophy (from Descartes to the present): “Is there anything wrong with Hume’s definition of cause?”
  • Moral and Political Philosophy: “Is a retributive theory of punishment the only safeguard against condoning the punishment of the innocent?”
  • Theory and Working of Political Institutions: “Has the British Parliament anything to learn from the U.S. Congress?”
  • British Political and Constitutional History Since 1830: “Why was the second Parliament Act so much like the first?”
  • Principles of Economics: “‘Monetary and fiscal policies should always work in the same direction.’ Should they?”
  • Economic Organization: “How would you judge whether there is a world liquidity shortage?”
  • Public Finance: “Compare the merits of an annual capital tax and an expenditure tax.”
  • Currency and Credit: “‘Debt management is monetary policy.’ Discuss.”

(I do not remember what my answers were and could not intelligently answer these or the other 24 questions today.)

After I had finished the written exams, I told my philosophy tutor what I had done. On the Political Institutions paper, I said I had written about the U.S. and the U.K. In response, the tutor said, “Krohnke, you should expect to be called back for a ‘viva‘ [viva voce or oral examination] to establish ‘spread’ or breadth. So get out the Political Institutions examination paper and develop an answer about France or the Soviet Union.”

This was an example of how your tutors were also your coaches. That relationship was celebrated when Worcester College’s PPE tutors gave a dinner for their students who were “taking Schools” that term in one of the College’s senior common rooms.

In any event, I did as my tutor suggested and prepared an answer about France or the Soviet Union for the Political Institutions examination. It was time well spent for indeed I was called back for a viva by the full examination committee of six or so dons. It took place in a large room in the Examination Schools building. The dons were wearing full academic gear (robes, caps, etc.), and again I was in sub-fusc clothing. The chair of the committee said, “Mr. Krohnke, please tell us something about France or the Soviet Union.” I said something like, “Question No. 4” and then delivered my memorized answer. The committee chair then said, “Thank you very much,” and I left the room.

Sometime in July the examination results were posted on the University bulletin boards and published in The Times of London. I was greatly surprised and pleased to discover that I had obtained a First, which was awarded to the top 7.5 % of the 240 taking the exams.

Sheldonian Theater

All that was left was to obtain the B.A. degree in a ceremony in the Christopher Wren-designed Sheldonian Theater. The entire degree ceremony was conducted in Latin by the Classics (Greek and Latin) don from my college, who held the University position of Public Orator. Although I did not understand what he was saying, it was difficult to keep a straight face because the university newspaper that term had referred to him as “the Pubic Orator.”

[1] Post: Reading PPE at Oxford (June 6, 2011).

International Criminal Justice: The Jesuits Case in The Truth Commission for El Salvador

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves[2]  and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3]  We also have summarized the Salvadoran criminal case regarding this crime.[4] Along the way we have encountered the findings regarding this crime by the Truth Commission for El Salvador. Now we see what that Commission was and how it did its work.[5]

In January 1992, under United Nations’ auspices, the Government of El Salvador and the FMLN, a Salvadoran guerrilla group, successfully concluded their long negotiations to end the 12 years of civil war. The Peace Accords represent a genuine compromise: the FMLN renounced its aspiration to seize the state by military force and impose radical economic changes while the government and its political supporters relinquished their historical control and violent opposition to change.[6] The Accords laid out sweeping reforms to permit the FMLN to participate in political life, to transform the institutions that had accounted for the major human rights violations and to achieve greater equity in the economic and social life of the country.[7]

The Peace Accords also created the Commission for the Truth for El Salvador.[8] Its inclusion developed out of the desire of both sides for at least symbolic justice focused on the most notorious cases with the U.N. providing the compromise formula for such a commission.[9] The U.N. Secretary-General appointed the three members of the Commission. Notably none of its members was Salvadoran because its work was perceived to be too dangerous for anyone who lived in the country.[10]

The Commission was charged to consider and resolve “the need to clarify and put an end to any indication of impunity on the part of officers of the armed forces, particularly in cases where respect for human rights is jeopardized.”[11]

More specifically, the Commission was to investigate “serious acts of violence that have occurred since 1980 and whose impact on society urgently demands that the public should know the truth.”[12] In conducting these investigations, the Commission was to take into account “the exceptional importance that may be attached to the acts to be investigated, their characteristics and impact, and the social unrest to which they gave rise” and the “need to create confidence in the positive changes which the peace process is promoting and to assist the transition to national reconciliation.”[13]

In addition, the Commission was to make “legal, political or administrative” recommendations for specific cases as both sides had agreed that the Commission could recommend criminal prosecutions.[14] More generally, the Commission recommendations “may include measures to prevent the repetition of such acts, and initiatives to promote national reconciliation.”[15] Under the Peace Accords, the parties “undertake to carry out the Commission’s recommendations.”[16]

The Commission was to conduct its activities “on a confidential basis.” It was not to “function in the manner of a judicial body.” It could use “whatever sources of information it deems useful and reliable.” It could “interview, freely and in private,” anyone. Its procedures should “yield results in the short term, without prejudice to the obligations incumbent on the Salvadoran courts to solve such cases and impose the appropriate penalties on the culprits.”[17]

In evaluating and implementing this Mandate regarding its procedures and methodology, the Commission made the following decisions:

  • It would investigate individual cases or acts that outraged Salvadoran society and/or international opinion as well as a series of individual cases with similar characteristics revealing a pattern of violence or ill treatment that also outraged Salvadoran society.
  • Its sources would be confidential.
  • It would interview people and receive reports from governments and international bodies.
  • It would take all possible steps to ensure the reliability of the evidence used to arrive at a finding; to verify, substantiate and review all statements of facts by checking them against a large number of sources whose veracity had been established and by not basing any finding on a single source or witness or only on a secondary source.
  • It would name perpetrators of human rights violations.
  • Its report would specify the degree of certainty for each finding.  “Overwhelming evidence” would indicate “conclusive or highly convincing evidence.”  “Substantial evidence” would indicate “very solid evidence.”  “Sufficient evidence” would indicate “more evidence to support the . . . finding than to contradict it.”[18]

On March 15, 1993, the Commission delivered its report to the U.N. Security Council, the Government of El Salvador, the FMLN and the National Commission for the Consolidation of Peace (COPAZ). The Report made findings on 32 cases of serious acts of violence, one of which was the murders of the Jesuit priests.[19]

The Commission had no power to prosecute anyone, and it recommended against immediate prosecutions by the Salvadoran government because the Commission believed the Salvadoran judicial system was not capable of handling such cases.[20] Instead, the Commission’s findings on specific cases were intended to be used by the Salvadoran judicial system after it had been reformed to make “whatever final decisions they consider appropriate at this moment in history.”[21]

Finally  the Truth Commission Report has been held by U.S. federal courts to meet standards of trustworthiness and thus was admissible into evidence in cases involving El Salvador.[22]  The Inter-American Commission on Human Rights has reached the same conclusion for cases from the country.[23]

[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May31, 2011).

[2]  See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).

[3]  See Post: International Criminal Justice: El Salvador’s Military’s Attempt To Cover-Up Its Committing the Murders of the Jesuit Priests (June 7, 2011).

[4]  See Post: International Criminal Justice: The Salvadoran Criminal Prosecution of the Murders of the Jesuit Priests (June 8, 2011).

[5]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 13-14, 26-171 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html  [“Commission Report”]; Margaret Popkin, Peace without Justice: Obstacles to Building the Rule of Law in El Salvador at 3, 6-7, 41, 46-48, 50-57 (University Park, PA: Penn. State Univ. Press 2000) [“Popkin”]; Inter-American Commission on Human Rights, Annual Report 1991, ch. IV (Feb. 14, 1992); Inter-American Commission on Human Rights, Report on the Situation of Human Rights in El Salvador § I (1) (Feb. 11, 1994).

[6]  Terry Karl, El Salvador’s Negotiated Revolution, 71 Foreign Affairs 147, 148 (1992).

[7]  United Nations, El Salvador Agreements: The Path to Peace (1992) [“Peace Accords”]; Unitarian Universalist Service Comm.,  Provisional Summary of Key Accords by Salvadoran Negotiators (Jan. 15, 1992); Search for Justice, The Salvadoran Peace Accords: A Synopsis (circa Jan. 15, 1992) [“Accord Synopsis“]; El Rescate Human Rights Dep’t, The Salvadoran Peace Accords: An Outline (1992); Popkin at 3-4, 83-95; Human Rights Watch, World Reports: El Salvador (2001); Human Rights Watch, World Reports: El Salvador (2002).

[8]  Id.

[9]  Popkin at 87-94.

[10]  Accord Synopsis; Commission Report; Popkin at 87-88, 94-95, 121-24; Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vanderbilt J. Transnat’l L. 497, 499-500, 503-04 (1994) [“Buergenthal”]. Thomas Buergenthal was one of the members of the Truth Commission, and from 2000 to 2010 he was a judge on the International Court of Justice. (Int’l Court of Justice, Judge Thomas Buergenthal, http://www.icj-cij.org/court/index.php?p1=1&p2=2&p3=1&judge=11.)

[11]  Peace Accords at 53; Commission Report at 18; Popkin at 109-11.

[12]  Peace Accords at 17, 29; Commission Report at 18.

[13]  Peace Accords at 17, 30; Commission Report at 18; Popkin at 109-11.

[14]  Peace Accords at 30; Commission Report at 18; Popkin at 94.

[15]  Peace Accords at 30; Commission Report at 18; Popkin at 109-11.

[16]  Peace Accords at 31; Commission Report at 19.

[17]  Peace Accords at 30, 53; Commission Report at 22.

[18]  Commission Report at 22-25; Popkin at 112-20. The El Salvador Government tried to persuade the Commission not to name individuals. Buergenthal at 519-22 (Commissioners assumed from the start that alleged perpetrators would have to be named and not to do so would reinforce the impunity that was supposed to end); Popkin at 113-14; David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process  at 499-500 (4th ed. 2009) [“Weissbrodt”].

[19]  Commission Report at 43-171.

[20]   Commission Report at 177-79; Popkin at 131-39, 140-43.

[21]  Commission Report at 13.

[22]  Doe v. Saravia, 348 F. Supp. 2d 1112, 1131-32, 1255 (E.D. Cal. 2005); Chavez v. Carranza, 413 F. Supp. 2d 891, 903-04 (W.D. Tenn. 2005), aff’d, 559 F.3d 486, 496 (6th Cir. 2009), cert. denied, 130 S. Ct. 110 (2009); Fed. R. Evid. 801 (c), 803 (8).

[23]  Monsignor Romero v. El Salvador, Rep. No. 37/00, ¶¶ 30-54, 88, 120 (IACHR April 13, 2000); Ignacio Ellacuria, et al. v. El Salvador, Rep. No. 136/99, ¶¶ 79-86 (IACHR Dec. 22, 1999); Admissibility of El Mazote Massacre, Rep. No. 24/06, ¶¶ 30-42 (IACHR Mar. 2, 2006).

International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves[2] and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3] Now we examine the Salvadoran criminal prosecution of some of the individuals involved in this crime.[4]

The murders of the Jesuit priests caused such a huge international uproar that El Salvador had to do something to make it appear as if it were pursuing justice in the case. As a result, in January 1990 it commenced criminal prosecution of five Salvadoran military officers and five soldiers of the Atlacatl Battalion. Colonel Guillermo Alfredo Benavides Moreno, the Director of the Military College, was accused of having given the order to murder the priests. Three Lieutenants were accused of commanding the operation. The five soldiers were accused of committing the murders.

The pre-trial proceedings took nearly two years. During this time, Colonel (now General) René Emilio Ponce, Colonel (now General) Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel (now General) Gilberto Rubio Rubio pressured lower-ranking officers not to mention orders from above in their testimony to the court.

Finally, the trial by jury took place in September 1991 in the building of the Supreme Court of Justice and was broadcast live on television. Several ranking military officers attended the trial with the defendants’ families. On the last day of the trial, during the defendants’ closing arguments, a large crowd outside the courthouse shouted chants in favor of the defendants, interrupting the trial. In closing arguments, defense counsel barely mentioned the crime itself. Instead, they asked the jury to reject foreign intervention and pressure, emphasized that five of the six victims were Spanish born, and argued that the military generally and the defendants in particular were heroes protecting the nation against terrorism.

The five-person jury, whose identity was kept secret, was charged with deciding the charges of murder and acts of terrorism. The other charges were left to the judge to decide.

Benevides was convicted of all eight counts of murder and instigation and conspiracy to commit acts of terrorism. One of the Lieutenants was convicted of one count of murder (the 16-year-old girl), instigation and conspiracy to commit acts of terrorism and being an accessory. Benevides and this Lieutenant were sentenced to 30 years imprisonment. The other two Lieutenants were convicted of instigation and conspiracy to commit acts of terrorism; they were sentenced to three years imprisonment, but released on bail and continued to serve in the military. A Lieutenant Colonel was convicted of being an accessory and sentenced to three years imprisonment, but he too was released on bail and continued to serve in the military. The five soldiers were acquitted of all charges.

International observers of the trial thought the jury verdict defied logic and the weight of the evidence.

In March 2000 and soon after the Inter-American Commission on Human Rights had issued a report on the case that will be discussed in a subsequent post, the Central American University (UCA), where the Jesuit priests had taught, sought to open a new Salvadoran criminal case regarding their murders, ultimately to no avail. UCA asked the country’s Attorney General to do so on the basis of UCA’s charges against former President Cristiani and five members of the Armed Forces High Command, including former General and Defense Minister Emilio Ponce.  Then Salvadoran President Flores opposed the request, and the Attorney General refused to do so, but the Salvadoran Supreme Court ruled that only a court could decide to reopen such a case.[5]

Thereafter (October 2000), a lower court rejected the prosecutor’s request to reopen the old case because it was “without legal substance” while ordering the prosecutor to conduct a new investigation to determine whether there were legitimate grounds for reopening the case.[6]

The Attorney General then conducted a new investigation and reapplied to a court to reopen the case, this time against Cristiani and four military officers, including Ponce. Once again, however, the lower court refused to do so in December 2000 on the ground that any new charges were barred by the country’s 10-year statute of limitations. Immediately afterwards Ponce and the other three officers held a press conference where Ponce accused left-wing groups of trying to de-stabilize the country by making these charges and admitted that he and his fellow former officers were concerned about developments elsewhere in Latin America, especially the fate of Augusto Pinochet in Chile and former Argentine military officers.[7]

[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011).

[2]  See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).

[3]  See Post: International Criminal Justice: Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests (June 7, 2011).

[4] This post’s summary of the Salvadoran criminal case is extracted from the Commission for the Truth for El Salvador’s Report: From Madness to Hope: The 12-year war in El Salvador  at 45-54 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html  [“Commission Report”]. See also Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador at 121-208 (Washington, D.C.; Georgetown Univ. Press 1993). In future posts we will talk about the Truth Commission for El Salvador; the country’s general amnesty; the Jesuits case before the Inter-American Commission for Human Rights; the Spanish implementation of the principle of universal jurisdiction; and more details about the Spanish case regarding this crime.

[5]  UCA Press Release (Mar. 27, 2000, http://www.uca.edu.sv/neuvo/pressrelease.html; Lanchin, Salvador ex-president accused of killings, BBC News, Mar. 28, 2000; El Salvador Former Air Force Chief Denies Role in Killings, Miami Herald, Mar. 29, 2000; The Necessity and Importance of the Truth, Processo, April 5, 2000, http://www.uca.edu.sv/publica/proceso/proci897.html;UCA Impugns the Attorney General of the Republic’s Decision on the Jesuit Case, Processo, April 26, 2000,  http://www.uca.edu.sv/publica/proceso/proci899.html#doc;  New Charges Barred in Salvador Killings, N. Y. Times, Oct. 24, 2000; Editorial: The Impunity of Power, Processo, Oct. 25, 2000;  Darling, El Salvador to Reopen Murder Probe; Attorney general, under pressure, will investigate an ex-president and others in 1989 slayings of six Jesuit priests, Los Angeles Times, Oct. 26, 2000; No New Trial Set in Deaths of 6 Jesuits, Miami Herald, Dec. 14, 2000; Lanchin, Salvadorean ex-general issues warning, BBC News, Dec. 15, 2000.

[6]  Id.

[7]  Id.


International Criminal Justice: Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves.[2] Now we look at the provisional facts regarding the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3]

Immediately after the killings in the early morning of November 16, 1989, two of the military officers who were involved went to Colonel Ponce’s office to report on everything that had happened at UCA. They said that they had a small suitcase with photographs, documents and money which the soldiers had stolen from the Jesuits a few hours earlier. Colonel Ponce ordered it destroyed because it was evidence of the armed forces’ responsibility. They destroyed the suitcase at the Military College.

On returning to his unit after the killings, one of the Lieutenants who was involved informed the Commander of the Atlacatl Battalion, Lieutenant Colonel Oscar Alberto León Linares, of what had happened.

Colonel Benavides, who was in charge of carrying out the order to kill Father Ellacuria and leave no witnesses, immediately after the murders told Lieutenant Colonel Manuel Antonio Rivas Mejía, the Head of the Commission for the Investigation of Criminal Acts (CIHD), what had happened and asked him for help. Mejia recommended that the barrels of the weapons that had been used be destroyed and replaced with others in order to prevent them from being identified during ballistic tests. This was later done with the assistance of Lieutenant Colonel Oscar Alberto León Linares.

Lieutenant Colonel Rivas Mejia, the Head of CIHD, also advised Colonel Benavides to make sure that no record remained of those entering and leaving the Military College the prior night and following morning so that it would not be possible to identify the military personnel involved in the murders. Subsequently, Colonel Benavides and another officer ordered that all Military College arrival and departure logs for that year and the previous year be burned.

Soon after the murders, President Cristiani entrusted the investigation of the crime to CIHD, whose head already had been involved in attempting to cover up the military’s involvement in the crime.

Shortly after the CIHD investigation began, Colonel René Emilio Ponce arranged for the head of a unit of the Armed Forces’ General Staff to join CIHD in order to assist in the investigation of the case. Yet this person also had been in charge of the General Staff Tactical Operations Centre during the entire night of 15 to 16 November.

Later in November 1989, CIHD heard two witnesses who testified that they had seen soldiers of the Atlacatl Battalion near UCA that night. They later changed their statements.

An UCA employee said that she had seen, from a building adjacent to the Jesuits’ residence, soldiers in camouflage and berets the night of the murders. In the United States, where she went for protection, she was questioned by the Federal Bureau of Investigation (FBI) and retracted her earlier statement. Lieutenant Colonel Rivas Mejía, the Head of CIHD, was present when she was questioned by the FBI. Subsequently, she confirmed her original statement.

CIHD did not take a statement from Colonel Benavides, even though the incident had occurred within his command zone. According to the court dossier, the first statement Benavides made was in January 1990 to the Special Honor Commission of the Salvadoran military.

On 2 January 1990, a month and a half after the murders, Major Eric Warren Buckland, an officer of the United States Army and an adviser to the armed forces of El Salvador, reported to his U.S. superior that he recently had been told that Colonel Benavides had arranged the murders, that a unit from the Atlacatl Battalion had carried them out and that Benavides had asked Lieutenant Colonel Rivas Mejia for help. In a subsequent meeting with Buckland’s source, the source denied that he had so stated to Buckland.

In early January 1990, the Minister of Defense established a Special Honor Commission, consisting of five officers and two civilians, to investigate the murders. The Commission thereafter questioned some 30 members of the Atlacatl Battalion and a number of officers of the Military College, including Colonel Benavides. Three of the Lieutenants and the soldiers who had participated in the murders confessed their crime in extrajudicial statements to the Honor Commission.

A civilian member of the Commission and a legal adviser to the military’s General Staff altered these confessions in order to delete any reference to the existence of orders from above. He also deleted the references to some officers.

On January 12, 1990, the Commission submitted its report to Salvadoran President Cristiani. The report identified nine people as being responsible for the murders, four officers and five soldiers; they were arrested and later brought to trial. Subsequently, another Lieutenant Colonel was included in the trial. The Salvadoran criminal case will be discussed in a subsequent post.

[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011).

[2]  See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).

[3]  This post’s factual recitation is extracted from the Commission for the Truth for El Salvador’s Report: From Madness to Hope: The 12-year war in El Salvador  at 45-54 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html  [“Commission Report”]. See also Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador at 73-194 (Washington, D.C.; Georgetown Univ. Press 1993). Although, as will be discussed in a subsequent post, the Truth Commission adhered to an objective and reasonable methodology in conducting its investigations and writing its report, it must be recognized that there was no cross-examination of witnesses by attorneys for the accused or full opportunity for them to present evidence in their own defense. Thus, the findings of the Truth Commission must be taken as provisional in nature. In other future posts we will talk about the Salvadoran criminal prosecution of some of the military officers who were involved and the subsequent Salvadoran general amnesty for them and others; the Jesuits case before the Inter-American Commission for Human Rights; the Spanish implementation of the principle of universal jurisdiction; and more details about the Spanish case regarding this crime.

Reading PPE at Oxford

Once I knew I would be going to the University of Oxford in the Fall of 1961, I had to decide what I was going to study. At the time, most American Rhodes Scholars read for a second bachelor’s degree that involved Oxford’s traditional tutorial style of education. (Today, more choose to seek advanced degrees.)

I rejected “reading” Jurisprudence for a B.A. degree because at the time that required translation of Roman law from Latin into English, a skill I did not have and did not think I could acquire “on the side” while doing everything else at Oxford.

Instead, like many American Rhodes Scholars, I chose Philosophy, Politics and Economics or PPE.[1] It was also known as “Modern Greats” to indicate that it was designed in the 1920’s to replicate some of the features of Classics or Greats or Literae Humaniores (Greek and Latin), one of Oxford’s traditional and famous courses of study. PPE, on the other hand, was designed to be a well-balanced course of study of the social problems of the modern world.[2]

PPE was organized in two subjects in each of the three PPE disciplines: General Philosophy (from Descartes to the present); Moral and Political Philosophy; Theory and Working of Political Institutions; British Political and Constitutional History Since 1830; Principles of Economics; and Economic Organization. The student also selected two additional subjects to study; I chose two in economics–Public Finance and Currency and Credit.

During Oxford’s three eight-week terms of the academic year, you had two tutorials a week in these subjects. For the six required subjects there were usually only two students with tutors from your own college. For the optional subjects, you usually were alone in the tutorial and sometimes with a tutor from another Oxford college who specialized in those subjects.

Each week the tutor would set the problem and suggest relevant readings for the next week. The subject would always be put as a question that required you to come to a conclusion and marshal the evidence and arguments for your conclusion. Here are examples of such problems:

  • “The Left was never right.” Discuss this verdict with regard to British foreign policy between the world wars. Was the Right ever wrong?
  • What do we mean by “James who now does this is the same person who did that?” How do we know we are correct?
  • Is the City [London’s financial industry] vital to the U.K.’s role in world trade?
  • Can it ever be justifiably claimed that a tariff is imposed for revenue purposes only?
  • Is infallibility a pre-condition for knowledge? If not, why do we often think it is?

During the following week, if you were doing your work, you would read at least the suggested readings and prepare an essay analyzing the problem. At the following tutorial one of the students (if there were two) would read his essay, and the tutor would comment, ask questions and start discussions about the problem. The tutorials, by the way, were held in the tutor’s rooms in the college, and the students were required to wear their academic gowns. (Although I was a Rhodes Scholar, I was not a scholar of Worcester College and, therefore, was not entitled to wear a scholar’s longer gown. Instead, I wore a skimpy “commoner’s gown.”)

The philosophy tutorials were the most difficult and frustrating for me. Oxford was then in the throes of linguistic analysis with its emphasis on careful examination of the language of philosophical argument.[3] We frequently were assigned very abstruse articles in British philosophical journals —Mind and Proceedings of the Aristotelian Society. One of the articles that I recall had a title like “What do we mean when we say this is a Grade A apple?” I kept wondering  why I was spending my time reading these articles. Usually, however, during the tutorial I would say to myself that this was a worthy activity for someone like the tutor who was really good at it. But it was not for me. The tutor probably would say to himself, “Oh, these pragmatic Americans, they don’t get it.”

In addition to preparing for and participating in tutorials, the students could, if they wished, attend university-wide lectures on the PPE subjects (or, if you wished, on any other subjects that interested you.) I attended some and heard some of the famous Oxford dons of the day: J. R. Hicks (economist), Gilbert Ryle (philosopher) and A. J. Ayer (philosopher) are ones that I remember.

Finally during your “vacs” (vacations) and especially the “long vac” (the four-month summer vacation), you were encouraged to study independently. During one vac, for example, I spent several weeks at St. Deiniol’s Library (n/k/a Gladstone’s Library), a residence library near Hawarden, Wales[4] where I had room and board and a quiet library in which to study. (The Library was founded for “Divine Learning” by William Ewart Gladstone, Britain’s 19th century Prime Minister, and is close to Hawarden Castle, which was Gladstone’s estate.)[5]

At the end of each term, as I recall, your tutors gave practice exams, which were evaluated and returned with comments. Also at least once a year one of your tutors would give an “oral report card” on your performance to the head of your college.

The only “real” examinations were those given at the end of your time at Oxford. This memorable experience will be described in a subsequent posting.

As I reflect on this educational experience, I especially value the way that the subjects were presented to the students. You were forced to come to a conclusion and justify that conclusion, rather than saying a lot about a subject and avoiding coming to your own conclusions. You also had great freedom. You could look for, and read, resources beyond those suggested by the tutor. You could attend lectures if you wanted to. Given the one-on-one nature of tutorials, a student could not hide and never say a word.

[1]  Two of the more famous American Rhodes Scholars, Pete Dawkins and Bill Bradley, for example, read PPE. (See Post: Oxford in New York City (May 17, 2011).) Bill Clinton, who was a Rhodes Scholar at Oxford, 1968-70, started in PPE, but soon abandoned the program because he thought it was too repetitive of his U.S. undergraduate education. Clinton first switched to a graduate degree program (B. Litt. in Politics) that did not involve tutorials, but required a 50,000-word dissertation. His tutor, however, persuaded him that was a mistake and to switch instead to a graduate degree (B. Phil. in Politics), that had tutorials, essays, exams and a shorter thesis. Clinton made the switch, but did not finish this program and did not earn an Oxford degree; his memoir says he chose to go to Yale Law School rather than finishing the Oxford degree. (Bill Clinton, My Life at 141-43, 171 (New York: Knopf  2004); Ralph Evans (editor), Register of Rhodes Scholars 1903-1995 at 306 (Oxford: Rhodes Trust 1996).) In 2003 my wife and I attended a celebration of the centennial of the Rhodes Scholarships at Westminster Hall in London where Clinton was one of the speakers. He said his family was always embarrassed he had never earned an Oxford degree, but that year his daughter Chelsea redeemed the family honor by earning such a degree the prior day. (Bill Clinton, Speech: Rhodes Trust Centenary Celebration, July 2, 2003, http://www.clingtonfoundation.org.) Other American Rhodes Scholar-politicians who read PPE are U.S. Senator Richard Lugar and former Senators David Boren and Paul Sarbanes. (Register of Rhodes Scholars 1903-1995 at 201, 203, 269.) The current British Prime Minister, David Cameron, also read PPE, as did other prominent U.K. politicians (Harold Wilson, Edward Heath, Shirley Williams, Edwina Castle). (Wikipedia, David Cameron, http://en.wikipedia.org/wiki/David_Cameron; BBC News, Why does PPE rule Britain? (Oct. 31, 2010), http://www.bbc.co.uk/news/magazine-11136511.

[2]  Handbook to the University of Oxford at 147-50, 158-60 (Oxford: Clarendon Press 1960); Wikipedia, Philosophy, Politics and Economics, http://en.wikipedia.org/wiki/Philosophy,_Politics_and_Economics.

[3]  Wikipedia, Analytical Philosophy, http://en.wikipedia.org/wiki/Analytic_philosophy.

[4]  Wikipedia, Gladstone’s Library, http://en.wikipedia.org/wiki/Gladstone’s_Library.

[5]  Wikipedia, William Ewart Gladstone, http://en.wikipedia.org/wiki/William_Ewart_Gladstone.

International Criminal Justice: The Salvadoran Murders of the Jesuit Priests

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador.[1] Here we examine the provisional facts of the murders themselves and of the surrounding circumstances.[2]

The Murders

In the early hours of November 16, 1989, a group of Salvadoran soldiers from the Atlacatl Battalion entered the campus of the Central American University (UCA) in San Salvador. They made their way to the Pastoral Centre, which was the residence of Jesuit priests Ignacio Ellacuría, Rector of the University; Ignacio Martín-Baró, Vice-Rector; Segundo Montes, Director of the Human Rights Institute; and Amando López, Joaquín López y López and Juan Ramón Moreno, all teachers at UCA.

The soldiers tried to force their way into the Pastoral Centre. When the priests realized what was happening, they let the soldiers in voluntarily. The soldiers searched the building and ordered the priests to go out into the back garden and lie face down on the ground.

The lieutenant in command gave the order to kill the priests. Fathers Ellacuria, Martín-Baró and Montes were shot and killed by a Private, Fathers López and Moreno by a Deputy Sergeant. Shortly afterwards, the soldiers found Father Joaquín López y López inside the residence and killed him. Another Deputy Sergeant shot Julia Elva Ramos, who was working as a cook in the residence, and her 16-year-old daughter, Celina Mariceth Ramos. Another Private shot them again, finishing them off.

The soldiers then took a small suitcase belonging to the priests containing photographs, documents and $5,000. They also fired a machine gun at the façade of the residence and launched rockets and grenades. Before leaving, they wrote on a piece of cardboard: “FMLN executed those who informed on it. Victory or death, FMLN.”

The FMLN’s “Final Offensive” and the Salvadoran Military’s Response

This horrible crime occurred in the midst of what the FMLN guerrillas called “The Final Offensive.” Most of the nine-year old civil war had been fought in the mountains and countryside. On November 11, 1989, however, “The Final Offensive” was launched to bring the war into the capitol city of San Salvador for the first time.

This assault reached alarming proportions that the Salvadoran armed forces had not expected. The guerrillas gained control of various areas in and around the capitol. They attacked the official and private residences of the President of the Republic and the residence of the President of the Legislative Assembly. They also attacked the barracks of the First, Third and Sixth Infantry Brigades and those of the National Police. In addition, guerrillas blew up one of the main gates of UCA and crossed UCA’s campus.

On November 12, the Government declared a state of emergency and imposed a 6 p.m. to 6 a.m. curfew.

The next day, November 13, at a meeting of the Salvadoran Armed Forces’ General Staff, security commands were created to deal with the FMLN offensive. Each command was headed by an officer under the operational control of Colonel René Emilio Ponce, Chief of the Armed Forces Joint Staff. Colonel Guillermo Alfredo Benavides was designated to head the military complex security command zone. It included the Military College, the Ministry of Defense, the Joint Staff, the National Intelligence Department, two districts where many members of the armed forces lived, the residence of the United States Ambassador and the UCA campus. (It takes less than five minutes to drive from the Salvadoran Ministry of Defense complex (Estado Mayor) to the UCA campus, as I know from visiting them both.)

A national radio channel also was established, the pilot station being Radio Cuscatlán of the armed forces. Telephone calls to the station were broadcast in a “phone-in” in which callers lofted accusations at Father Ellacuria and called for his death.

Salvadoran Military’s Focus on UCA

The Salvadoran military’s response to the FMLN offensive devoted a lot of effort to UCA, which was very close to the Ministry of Defense complex and which was seen by many in the armed forces as a “refuge of subversives.” Colonel Juan Orlando Zepeda, Vice-Minister for Defense, publicly accused UCA of being the center of operations where FMLN terrorist strategy was planned. Colonel Inocente Montano, Vice-Minister for Public Security, stated publicly that the Jesuits were fully identified with subversive movements. Sectors of the armed forces identified the Jesuit priests with FMLN because of the priests’ special concern for those sectors of Salvadorian society who were poorest and most affected by the war.

On November 12th, a Salvadoran military detachment was stationed to watch who went in and out of UCA. Starting the next day no one was permitted onto the campus.

On November 13th, Colonel Ponce ordered a search of UCA premises. According to Colonel Ponce, he ordered the search because he had been informed that there were over 200 guerrillas inside the UCA campus.

The search was entrusted to a Lieutenant with 100 men from the Atlacatl Battalion. Another Lieutenant  of the National Intelligence Department joined the troops at the entrance to UCA to assist with the search. One of the Lieutenants personally directed the search of the Jesuits residence. They found no signs of any guerrilla presence, war material or propaganda. After completing the search, one of the  Lieutenants reported the results to higher officers.

On November 15th at 6.30 p.m. there was a meeting of the General Staff with military heads and commanders to adopt new measures to deal with the offensive. Colonel Ponce authorized the elimination of ringleaders, trade unionists and known leaders of FMLN, and a decision was taken to step up bombing by the Air Force and to use artillery and armored vehicles to dislodge FMLN from the areas it controlled.

The Minister of Defence, General Larios, asked whether anyone objected. No hand was raised. It was agreed that Salvadoran President Alfredo Cristiani would be consulted about the measures.

After the meeting, the officers stayed in the room talking in groups. One of these groups included Colonel Ponce, Colonel Zepeda and Colonel Montano. Colonel Ponce called over Colonel Guillermo Alfredo Benavides, who was the Director of the Military College. In front of four other officers, Ponce ordered Benavides to eliminate Father Ellacuria and to leave no witnesses. He also ordered him to use the unit from the Atlacatl Battalion which had carried out the search two days earlier.

That same night, November 15th, between 10 p.m. and 11 p.m., Benavides met with the officers under his command. Colonel Benavides told them that he had just come from a meeting at the General Staff at which special measures had been adopted to combat the FMLN offensive. Colonel Benavides said that the situation was critical and it had been decided that artillery and armored vehicles should be used. He also told them that all known subversive elements must be eliminated.

Colonel Benavides specifically said that he had received orders to eliminate Father Ignacio Ellacuria and to leave no witnesses. Colonel Benavides asked any officers who objected to this order to raise their hands. No one did.

After the meeting, the leader of the Atlacatl Battalion decided that in order to try to blame the deaths on the FMLN, they would use an AK-47 rifle that had been captured from the FMLN, instead of regulation firearms, and that they would leave no witnesses. After the murders, they would simulate an attack and leave a sign mentioning FMLN.

Two pick-up trucks with the soldiers from the Atlacatl Battalion left the Military College and joined other soldiers of the Atlacatl Battalion. They then proceeded to the Pastorale Center of UCA and committed the murders as previously described.

[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May31, 2011).

[2] This post’s factual recitation is extracted from the Commission for the Truth for El Salvador’s Report: From Madness to Hope: The 12-year war in El Salvador  at 45-54 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html  [“Commission Report”]. See also Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador at 37-71 (Washington, D.C.; Georgetown Univ. Press 1993). Although, as will be discussed in a subsequent post, the Truth Commission adhered to an objective and reasonable methodology in conducting its investigations and writing its report, it must be recognized that there was no cross-examination of witnesses by attorneys for the accused or full opportunity for them to present evidence in their own defense. Thus, the findings of the Truth Commission must be taken as provisional in nature. In other future posts we will talk about the Salvadoran military’s efforts to cover up their participation in this crime; the Salvadoran criminal prosecution of some of the military officers who were involved and the subsequent Salvadoran general amnesty for them and others; the Jesuits case before the Inter-American Commission for Human Rights; the Spanish implementation of the principle of universal jurisdiction; and more details about the Spanish case regarding this crime.

International Criminal Justice: Mladic Update

On May31st Ratko Mladic arrived at The Hague and immediately was locked up in the Dutch prison used by the International Criminal Tribunal for the former Yugoslavia (ICTY).[1]

In the five days since his arrest and ordered extradition on May 26th,[2] Mladic appealed the Serbian court’s order of extradition to The Hague. The appeal asserted that he is physically and mentally unfit for trial. On May 31st the appeal was rejected.[3]

The following is a summary of the ICTY charges facing Mladic:

  • Genocide and complicity in genocide: for leading Bosnian Serb forces who massacred 8,000 Muslim men and boys in Srebrenica in 1995 and ethnically cleansed towns and villages in Bosnia of non-Serbs throughout the 1992-95 Bosnian war.
  • Crimes against humanity by persecution on the basis of religion: for killing, torturing, raping, deporting and illegally imprisoning Muslims and Croats.
  • War crimes by extermination, murder and cruel treatment: for widespread killing of non-Serb civilians in towns and villages targeted by Bosnian Serb forces and for the deadly campaign of sniping and shelling of civilians during the 44-month siege of the Bosnian capital, Sarajevo.
  • War crimes by taking hostages: for taking hostage United Nations military observers and peacekeepers. [4]

Through his son Mladic has denied that he ordered the massacre at Srebrenica.[5]

Now attention is being paid to how Mladic was able for so long to avoid arrest and whether those who aided his evasion of legal process are liable for crimes.[6]

Mladic still has supporters in Serbia, and on May 29th around 10,000 of them rallied in Belgrade to protest the arrest and threatened extradition of Mladic to the ICTY at The Hague. The crowd also demanded the resignation of the Serbian president, Boris Tadic, whom they called a traitor to Serbia for his willingness to hand over alleged war criminals to the tribunal.[7]

The ICTY has jurisdiction over perpetrators of atrocities committed during the Balkan wars of the 1990s, including grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity. It has indicted 161 ethnic Serbs, Croats and Muslims, the majority of whom are Serbs. The following summarizes the status of these 161 cases:[8]

Concluded cases: Convicted & sentenced   64
Acquitted   13
Referred to national court   13
Withdrawn/deceased   36
Pending Cases: Appeal after trial   16
At trial   14
Pre-trial     4
At large     1
TOTAL   161

[1] Simons, Mladic Arrives in the Hague, N.Y. Times (May 31, 2011), http://www.nytimes.com/2011/06/01/world/europe/01serbia.html?ref=world&pagewanted=print.

[2] See Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011).

[3] Carvajal, Mladic Appeals Extradition on Health Ground, N.Y. Times (May 31, 2011), http://www.nytimes.com/2011/05/31/world/europe/31serbia.html?ref=world; Carvajal, Mladic Extradition Appeal Rejected, N.Y. Times (May 31, 2011), http://www.nytimes.com/2011/06/01/world/europe/01serbia.html?hp.

[4] Associated Press, A Summary of War Crimes Charges Against Mladic, N.Y. Times (May 31, 2011), http://www.nytimes.com/aponline/2011/05/31/world/europe/AP-EU-Mladic-The-Charges-Glance.html?hp; ICTY, Case Information Sheet: Ratko Mladichttp://www.icty.org/x/cases/mladic/cis/en/cis_mladic_en.pdf.

[5] Beaumont & Meikle, Ratko Mladic denies ordering Srebrenica massacre, says his son, Guardian (May 30, 2011), http://www.guardian.co.uk/world/2011/may/29/ratko-mladic-denies-ordering-srebrenica-massacre.

[6] Carvajal & Erlanger, Serb Fugitve Slowly Starved of Friends and Cash, N.Y. Times (May 29, 2011),   http://www.nytimes.com/2011/05/30/world/europe/30mladic.html?ref=world.

[7] Erlanger, Demonstrators Rally Against Mladic Extradition, N.Y. Times (May 29, 2011), http://www.nytimes.com/2011/05/30/world/europe/30serbia.html?ref=world.

[8] ICTY, Key Figures, http://www.icty.org/sections/TheCases/KeyFigures;  Associated Press, An Overview of the Yugoslav War Crimes Court, N.Y. Times (May 31, 2011), http://www.nytimes.com/aponline/2011/05/31/world/europe/AP-EU-Mladic-Tribunal-Glance.html?ref=world. See also Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Justice: The International Residual Mechanism for Criminal Tribunals (May 28, 2011).

International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests

A Spanish court yesterday issued arrest warrants for 20 of the top military leaders of El Salvador’s civil war, accusing them of crimes against humanity and state terrorism in meticulously planning and carrying out the killings of six Jesuit priests in November 1989.[1]

Among the men named in the indictment were Rafael Humberto Larios, who was the Salvadoran defense minister at the time; Juan Orlando Zepeda, the vice defense minister; Rene Emilio Ponce, leader of the Army’s Joint Chiefs of Staff; and Inocente Orlando Montano, the vice minister of public safety. Mr. Ponce, who is believed to have given the order for the killings, died this month in El Salvador. Mr. Montano is in custody.

The Jesuit priests were the leader and professors at the Universidad de Centro America (UCA) in San Salvador, the capitol of El Salvador. The Rector of the University of Central America, the Rev. Ignacio Ellacuría, had organized an open public forum about the country’s problems. All six were noted professors who had published papers about the country’s problems, and most of them also had served as pastors in communities around the capital city.[2]

At the time of the murders, El Salvador was engaged in a civil war with leftist guerillas, and supporters of the Salvadoran government said that UCA was the “logistical center of Communist subversion.” The Jesuits at UCA were “agents of the Marxist conspiracy at the service of the Kremlin.” Ellacuria, they said, directed “all Marxist-Leninist strategy in Central America.” The Jesuits, according to these government supporters, were “the intellectual authors who have directed the guerillas.” [3]

This important development raises many issues that will be discussed in subsequent posts: (a) the work of the priests and UCA in the life of El Salvador; (b) the facts relating to the murders; (c) the criminal prosecution of some of the military officers in El Salvador; (d) the investigation and report about this horrendous crime by the Truth Commission for El Salvador; (d) the subsequent general amnesty adopted by the Salvadoran legislature; (e) the investigation and report about this crime by the Inter-American Commission on Human Rights; (f) the background of the case before the Spanish court; (g) the important work by international human rights non-governmental organizations like the Center for Justice & Accountability that has been a leader in the case in Spain; and (h) the international law principle of universal jurisdiction and Spain’s implementation of that principle.

As a result of my involvement with El Salvador over the last 26 years, my six visits to the country and to UCA itself and my investigation of the above issues, the latest development in the Spanish case is very important to me legally, spiritually and emotionally. Through all of these activities, I have come to see that there is an ever-evolving interactive global struggle against impunity for violators of human rights and that many courts, other international and domestic governmental and non-governmental institutions and people play different and important roles in this process.  [4]

[1] Malkin, From Spain, Charges Against 20 in the Killing of 6 Priests in El Salvador in 1989, N.Y. Times (May 31, 2011); Center for Justice & Accountability, Spanish Judge Issues Indictments and Arrest Warrants in Jesuits Massacre Case (May 30, 2011), http://www.cja.org/article.php?id=1004.

[2] Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador  (Washington, D.C.; Georgetown Univ. Press 1993) [“Doggett”]; Jon Sobrino, et al., Companions of Jesus: The Jesuit Martyrs of El Salvador (Maryknoll, NY; Orbis Books 1990).

[3] Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 49 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html;  Doggett at 17.

[4] See Post: My First 10 Years of Retirement (April 23, 2011); Post: International Criminal Justice: Introduction (April 26, 2011); Post: The Sanctuary Movement Case (May 22, 2011); Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011); Post: My Pilgrimage to El Salvador, April 1989 (May 25, 2011).

The Adam Clayton Powell, Jr. Litigation

On March 1, 1967, the U.S. House of Representatives by a vote of 307 to 116 refused to seat Adam Clayton Powell, Jr., the re-elected African-American Congressman from Harlem, censured him, fined him $25,000, took away his seniority and declared his seat vacant. The grounds were that he had engaged in conduct unbecoming a Congressman: he had refused to pay a libel judgment ordered by a New York state court, had refused to return to his district except on Sunday in order to avoid service of legal process in that case, had misappropriated congressional travel funds and illegally had paid his wife a congressional staff salary for work she had not done.[1]

Soon thereafter Powell along with 13 of his constituents commenced a lawsuit in the U.S. District Court for the District of Columbia to invalidate his exclusion.  The defendants were John McCormack, who was the Speaker of the House, five other House members and three of its staff.  The complaint alleged that the exclusion violated Powell’s constitutional rights: Powell satisfied the constitutional qualifications for membership (age, citizenship and residency) and the exclusion allegedly was based upon his race and color and thereby violated his rights under the Fifth, Thirteenth and Fifteenth amendments to the Constitution.[2]

Powell’s lawyers were William Kunstler, a famous civil rights lawyer;[3] Arthur Kinoy, another prominent civil rights lawyer and Rutgers Law School Professor;[4] Herbert Reid, another civil rights lawyer and Howard Law School Professor;[5] and others.

The House decided that it did not want the Lyndon Johnson Administration’s Justice Department to defend the House’s leadership because of concern that political considerations would prevent the Department from vigorously asserting what the House believed to be its full constitutional prerogatives. Instead, the House took the recommendation of Emmanuel Celler, the Brooklyn Congressman and Chairman of the House Judiciary Committee, to hire as its attorney, Bruce Bromley, a partner in the New York City law firm of Cravath, Swaine & Moore.[6]

Bromley was a graduate of the University of Michigan and the Harvard Law School. He was a lawyer with the Cravath firm for over 50 years with one interruption. In January 1949, New York Governor Thomas E. Dewey, who had been the unsuccessful Republican presidential candidate the prior year, appointed Bromley to New York’s highest court (the Court of Appeals), but in November 1949, Bromley lost the election for a full term. Although he served on the bench for less than a year, thereafter he was always referred to as “Judge Bromley.” While at Cravath, he was the lead lawyer in successful representation of IBM, General Motors and other major corporations.[7]

For the Powell case, Bromley assembled a team of Cravath lawyers to work on the case, including yours truly. I do not recall what issues I worked on and now wish I had kept a journal about my involvement in this case to refresh my recollection. I do remember that another Cravath associate attorney and member of the team, Dorsey D. Ellis, Jr., was an amateur legal historian and was the primary draftsman of an appendix to the eventual Supreme Court brief that discussed the legislative common law of the British House of Commons and the early state legislatures regarding exclusion and expulsion of members of legislatures.[8] Another Cravath associate on the team, Jay Gerber, recently told me that he remembers the issues on which he worked.

The U.S. District Court for the District of Columbia dismissed the case for lack of subject-matter jurisdiction.[9]  The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal, but on different grounds. It held that the federal courts had subject-matter jurisdiction, but that case was not justiciable, i.e, it was not appropriate for judicial relief because of the separation of powers.[10] The case then went to the U.S. Supreme Court.

Before the Supreme Court argument, the other members of the Cravath team and I went to Washington several days ahead of time to prepare for the argument and to consult with Cravath’s Washington allies and former partners: Lloyd Cutler, who subsequently was White House Counsel for Presidents Carter and Clinton,[11] and John Pickering.[12] Cravath also brought the lawyers’ spouses to Washington on the Sunday before the oral argument in the Supreme Court so that they could watch the proceedings the next day. My wife was on a plane from New York City that Sunday with none other than Congressman Powell.

Although the House’s side had won in the lower federal courts, there were no guarantees that it would prevail in the U.S. Supreme Court. The House was asserting that its power under Article I, Section 5(1) of the Constitution to “be the Judge of the . . . Qualifications of its own members” was an implicit exception from the Article III “judicial Power of the United States [that was] vested in [the Supreme Court]” and the lower federal courts. Thus, the House argued, no federal court had the power to do anything in this case. As a result, it was anticipated that Chief Justice Earl Warren might well ask Judge Bromley in oral argument whether he was claiming that if the House or the Senate hypothetically were to exclude or expel five or six black members-elect in succession that the Supreme Court could do nothing. The answer to this hypothetical question was clearly “yes.”

At the oral argument, as I recall, the Chief Justice in fact asked that question. Bromley’s responded in essence that yes, the Court could do nothing, but that there was no reason to suspect that the House or the Senate might do such a thing and that there was a political remedy by the voters’ re-electing the same people. The Chief Justice and Bromley then got into a colloquy as to which branch of the federal government had the “final” say regarding the Constitution. Bromley said in very limited areas, each house of the Congress had the “final say:” impeachment and removal of federal officials and judging the qualifications of its members. Jay Gerber recalls that the Chief Justice almost fell out of his chair at that answer.

In June 1969, the U.S. Supreme Court, 7 to 1, reversed the dismissal of the lawsuit. The majority opinion by the Chief Justice held that the federal courts had jurisdiction over the subject matter of the case and that it was justiciable; that it did not constitute a political question that pitted one branch of government against another. Rather, it required “no more than an interpretation of the Constitution” by the Supreme Court.[13]

The majority opinion stated that while the House of Representatives was the sole judge of its members’ qualifications (U.S. Const., Art. I, § 5, cl. 1), the House did not have the power to develop qualifications other than those specified in the Constitution: election certificate, at least 25 years of age, U.S. citizen for at least seven years and an inhabitant of the state in which he or she was elected at the time of election (Art. I, § 2. Cls, 1, 2).

In addition, the Court’s majority opinion noted that while the Constitution states (Art. I, § 5, Cl. 2),”Each House [of Congress] shall be the Judge of the . . . Qualifications of its own Members,” the Constitution  immediately states that each “House may . . . with the Concurrence of two thirds, expel a Member.” The Court, therefore, held that the process leading to the expulsion of a Member, duly sworn and enrolled upon the body’s rolls, was the only constitutional method for a House to give effect to its power to determine the qualifications of its members. The House did not follow this procedure with respect to Congressman Powell. Therefore, he was entitled to a declaratory judgment that he had been unlawfully excluded from the Congress.

In the meantime, Powell had won the May 1967 special election to fill his congressional seat, but did not attempt to be seated.  He then won the next regular election in November 1968 and was seated in the House in January 1969 (approximately five months before the Supreme Court decision) subject to the $25,000 fine and loss of seniority. The next year, however, Powell lost the 1970 Democratic primary election to Charles Rangel and failed to qualify to be on the general election ballot.[14]

Powell was a member of a notable Harlem family. His father, Adam Clayton Powell, Sr., was Pastor of the Abyssinian Baptist Church in Harlem (1908-36) before being succeeded by Powell, Jr., his only son (1937-71).[15] Powell. Jr.’s older son, Adam Clayton Powell, III, was a journalist and media executive,[16] and Powell, Jr.’s younger son, Adam Clayton Powell IV, is a New York State legislator who lost the 2010 Democratic primary election for Congress to the incumbent, Charles Rangel.[17]

Powell, Jr. died in 1972 at age 62.

[1]  Powell v. McCormack, 395 U.S. 486, 489-93 (1969); Wikipedia, Powell v. McCormack, http://en.wikipedia.org/wiki/Powell_v._McCormack.

[2]  Powell v. McCormack, 266 F. Supp. 354 (D.C. DC. 1967).

[3]  Wikipedia, William Kunstler, http://en.wikipedia.org/wiki/William_Kunstler.

[4]  Wikipedia, Arthur Kinoy, http://en.wikipedia.org/wiki/Arthur_Kinoy.

[5]  Ravo, Herbert O. Reid, Sr., 75, Lawyer Who Taught Many Black Leaders, N.Y. Times (June 19, 1991).

[6]  Wikipedia, Bruce Bromley, http://en.wikipedia.org/wiki/Bruce_Bromley.

[7] Wikipedia, Bruce Bromley, http://en.wikipedia.org/wiki/Bruce_Bromley.

[8]  After Cravath, “Dan” Ellis became a member of the faculty at the University of Iowa School of Law and then Professor, Dean and eventually Dean Emeritus and William R. Orthwein Distinguished Professor of Law Emeritus at the University of Washington in St. Louis School of Law. (Washington University in St. Louis, Dorsey Ellis, http://news.wustl.edu/people/Pages/DorseyEllis.aspx.

[9]  Powell v. McCormack, 266 F. Supp. 354 (D.C. D.C. 1967).

[10]  Powell v. McCormack, 395 F.2d 577 (D.C. Cir. 1968).

[11]  Wikipedia, Lloyd Cutler, http://en.wikipedia.org/wiki/Lloyd_Cutler.

[12]  Wikipedia, John H. Pickering, http://en.wikipedia.org/wiki/John_H._Pickering.

[13]  Powell v. McCormack, 395 U.S. 486 (1969).

[14]  Wikipedia, Adam Clayton Powell, Jr., http://en.wikipedia.org/wiki/Adam_Clayton_Powell,_Jr.; Biographical Dictionary of the United States Congress, “Powell, Adam Clayton, Jr.,” http://bioguide.congress.gov/scripts/biodisplay.pl?index=p000477

[15] Wikipedia, Adam Clayton Powell, Sr., http://en.wikipedia.org/wiki/Adam_Clayton_Powell,_Sr.; Abyssinian Baptist Church, History, http://www.abyssinian.org/about-us/history/.

[16]  Wikipedia, Adam Clayton Powell III, http://en.wikipedia.org/wiki/Adam_Clayton_Powell_III.

[17]  Wikipedia, Adam Clayton Powell IV (Politician),  http://en.wikipedia.org/wiki/Adam_Clayton_Powell_IV_(politician).

Celebrating the 80th Anniversary of the Rhodes Scholarships

In June 1983 my wife and I attended festivities in Oxford to celebrate the 80th anniversary of the establishment of the Rhodes Scholarships.


With our printed invitations in hand, we went to a Garden Party at Rhodes House in the presence of Her Majesty The Queen and His Royal Highness The Duke of Edinburgh. They walked around a roped circle in the center of an eager gathering of over 1,400 former Scholars and spouses. From time to time they stopped to engage someone in conversation. We were not close enough to be candidates for being selected for such a conversation. But it was exciting to be there.

The “Court Circular” in The Times of London the next day reported that “The Queen and The Duke of Edinburgh . . . visited Rhodes House, Oxford (Warden Dr. R. A. Fletcher) and attended the Rhodes Scholars’ Reunion Garden Party. [They] . . . were received on arrival by Her Majesty’s Lord-Lieutenant for Oxfordshire (Sir Ashley Ponsonby, Bt.), the Chairman of the Rhodes Trustees (the Lord Blake) and the Chancellor of the University (the Right Hon. Harold Macmillan).”


At the University of Oxford’s Sheldonian Theatre, which was designed by Sir Christopher Wren, the University’s Vice-Chancellor convened the Congregation of the University (an official meeting of the senior members of the University). He then awarded Honorary Degrees to five former Rhodes Scholars. Doctors of Civil Law were awarded to Don Price, Emeritus Professor of Government and Public Management at Harvard University; The Honourable Robert Aaron Gordon Robertson, former Secretary to the Canadian Cabinet and to the Canadian Cabinet for Federal-Provincial Relations; and General Bernard William Rogers, Supreme Allied Commander Europe. Doctors of Letters were awarded to the Rt. Hon. Sir Zelman Cowen, the former Governor-General of Australia; and Robert Penn Warren, U.S. novelist, poet and Emeritus Professor of English at Yale University.

The Cathedral Church of Christ in Oxford was the site for a Thanksgiving Service.  The Bidding Prayer by The Rev’d Dr. J. K. McConica, a former Canadian Rhodes Scholar, gave “thanks for the benefits enjoyed in this place through the munificence of our Founder, Cecil John Rhodes” and prayed “for ourselves, that we may use to God’s glory the gifts and opportunities with which we have been so abundantly blessed.” The Rev’d Dr. David Alexander, an American Rhodes Scholar, in his closing prayer gave “hearty thanks for thy servant Cecil John Rhodes our Founder, by whose bounty we are here brought up to godliness and the studies of good learning.” Alexander then offered A Prayer for the Nations, A Prayer for the Universities, A Prayer for All Men in Their Vocation and a General Thanksgiving prayer.

A gala anniversary dinner was held in large marquees in the garden of Oxford’s Trinity College. Toasts to Her Majesty the Queen and to the Founder were offered by the Chairman of the Rhodes Trust, The Right Hon. Lord Blake. Welcoming remarks were made by the Chairman and by The Right Hon. Harold Macmillan, the Chancellor of the University and former Prime Minister of the U.K. The response on behalf of the guests was made by J. Ogilvie Thompson, a South African Rhodes Scholar at Worcester College (before my time) and the CEO of AngloGold Ashanti, a gold-mining company in South Africa.

The dinner menu featured Ogen Melon, Darne de Saumon, Le Supreme de Volaille Suedoise, Haricots verts, Pommes Nouvelles and Mille Feuille. The wines were Wiltinger Scharzberg Riesling 19980, Gold Label Rhine Riesling Ashbrook Estate 1982, Cabernet Sauvignon Newton Vineyard 1980 and Paarl Vintage 1961 port.