Center for Justice and Accountability (CJA)

Spain Ready to Proceed with Case Over the 1989 Killing of Jesuit Priests in El Salvador

For the last nine years, a court in Spain has been trying to obtain the presence of 20 former Salvadoran military officers to face trial on their alleged involvement in the 1989 murders of six Jesuit priests and their housekeeper and her daughter in El Salvador. Recently one of them—Inocente Orlando Montano Morales (“Montano”)—Is about to be sent to Spain for trial.[1]

Montano

Former Colonel Montano was the deputy minister of Salvadoran Public Security from 1989 to 1992 and since April 2015 has been the subject of a judicial request by the U.S. Department of Justice for his extradition from the U.S. to Spain to face these charges.

On February 4, 2016, a Magistrate Judge in the U.S. District Court for the District Court of the Eastern District of North Carolina, after an evidentiary hearing, granted this request for extradition based upon the following conclusions: the court had personal jurisdiction over Montano; the U.S. and Spain had an extradition treaty; Montano had been charged with extraditable offenses under that treaty (the terrorist murder of five Jesuit priests of Spanish original nationality); and there was probable cause the Montano committed these offenses.[2]

Montano then exercised his only means of appealing that order by filing in April 2016 an application for a writ of habeas corpus in the same court. After briefing and a hearing, a district judge of that court in August 2017, granted the U.S. government’s motion to dismiss the application and dismissed the application. This was based on the court’s conclusion that this extradition followed accepted practice and did not appear to be infirm; the treaty “provides for the extradition of a defendant charged with murder when committed outside the territory of the requesting nation {Spain]; . . . [its] laws allow for such a prosecution; and the laws of the requested nation [the U.S.] would allow for a prosecution in similar circumstances.”[3]

Montano then appealed this order to the U.S. Court of Appeals for the Fourth Circuit and simultaneously asked the district court for a stay or postponement of his extradition. This was denied by the district court on September 6 after concluding that he has “failed to make a strong showing that he is likely to succeed on the merits [of his appeal]” and “cannot demonstrate that he will suffer irreparable injury in the absence of a stay.” Thereafter simple denials of the request for a stay were entered on September 28 by the Fourth Circuit and on November 15 by U.S. Supreme Court Chief Justice John Roberts.[4]

Undoubtedly important in Chief Justice Roberts’ denial of a stay was the brief in opposition to such a stay that was submitted by the U.S. Solicitor General, the principal attorney for the U.S. in the U.S. Supreme Court. In its first three of 29 pages, before setting forth a detailed review and approval of the lower courts’ actions, that brief set forth the following facts from the record: “Toward the end of that war [between the military –led government and a leftist guerrilla group]– on November 16, 1989—members of the El Salvador Armed Forces . . . murdered six Jesuit priests, their housekeeper, and the housekeeper’s daughter at the Universidad Centroamerica (UCA) in El Salvador. . . . Five of them were Spanish nationals.” Moreover, evidence submitted by the Spanish authorities showed that “in the days leading up to the murders, the . . . radio station that [Montano] oversaw made threats against the Jesuit priests; that on the day before the murders, [Montano] participated in a meeting at which one of this fellow officers gave the order to kill the priests; that [Montano] provided ‘necessary information’—namely, the location of one of the priests—to those who carried out the murders; and that following the murders, [Montano] attempted to conceal [the Armed Forces] involvement by threatening the wife of a witness.”[5]

The Solicitor General concluded his brief with these comments: “the [U.S.] has a strong interest in having extradition requests resolved without undue delay, both to comply with its treaty obligations and to further its reciprocal interest in having other Nations cooperate swiftly with its own extradition requests and other law enforcement objectives.” Moreover, “Spain is an important partner of the [U.S.] in terrorism and other cases of national importance, and timely compliance with its extradition requests advances the [U.S.’] foreign policy and law enforcement interests.” (Pp. 27-28.)

As a result, Montano is now headed for imminent extradition to Spain. Almudena Bernabéu, an expert from the Center for Justice and Accountability (CJA) and a private prosecutor of the Jesuits case in Spain with her organization Guernica 37, said about four weeks ago the State Department determined that extradition was appropriate. “From that moment, the two countries are ready for delivery and reception of Montano, but they did not want to do it” until he had exhausted all of his U.S. remedies.

Other Former Salvadoran Military Officers

Of the other 19 former Salvadoran military officers charged with this horrible crime, one was convicted of the crime in El Salvador and was re-imprisoned after its Supreme Court invalidated its Amnesty law, one (former Defense Minister Emilio Ponce) is deceased and two others are cooperating with the Spanish prosecutors (Yussy Mendoza and Camilo Hernandez).

These other 15 still live in their home country, but its Supreme Court twice (2012 and 2016) has denied their extradition to Spain.

Manuel Escalante, a human rights lawyer at Jose Simeon Canas Central American University, where the murdered priests lived and worked and were murdered, after learning of the imminent extradition of Montano, called for prosecution of the 14 in El Salvador. He said that a conviction in Spain would be a big step toward “eliminating historical impunity” and that Salvadoran prosecutors must also act to advance the case in the Central American nation. The victims and their defenders “are going to seek justice. We are going to ask for the reopening of the trial.”[6]

The university, however, previously had said it considers the case closed against those who carried out the killings and even has called for clemency for former Col. Guillermo Benavides, who has served four years of a 30-year sentence as the only military official in prison for his role in the crime.

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[1] The charges subsequently were reduced to terrorist murder of the five priests of original Spanish nationality as a result of an amendment to Spain’s statute on universal jurisdiction. The priests, their murders, judicial proceedings about this crime, including the Spanish case, and these extradition proceeding have been discussed in the posts listed in “The Jesuit Priests” section in List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2] Certification of Extraditability & Order of Commitment, In re Request by Spain for the Extradition of Montano, Montano v. Elks. No. 2:15-MJ-1021-KS (E.D.N.C. Feb. 5, 2016).

[3] Order, Montano v. Elks, No. 5-16-HC-2066-BO (E.D.N.C. Aug. 21, 2017).

[4] Order, Montano v. Elks, No. 5-16-HC-2066-BO (E.D.N.C.. Sept. 6, 2017); Order, Montano v. Elks, N0. 17-7091 (4^th Cir. Sept. 28, 2017); Order, Montano v. Elks, No. 17A445 (U.S. Sup. Ct. Nov. 15, 2017); Drew, Last hurdle cleared for ex-Salvadoran official’s extradition, Assoc. Press (Nov. 15, 2017); Labrador & Rauda, Colonel Montano to Spain for the murder of the Jesuits, El Faro (Nov. 15, 2017); Progress in Jesuit murder case on 28^th anniversary, El Salvador Perspectives (Nov. 16, 2017); Alonso, The Supreme Court of the United States approves extraditing a Salvadoran ex-military man to Spain for the killing of the six Jesuits, El Pais (Nov. 15, 2017).

[5] Memorandum for the Federal Respondents in Opposition, Montano v. Elks, No. 17A445 (U.S. Sup. Ct. Nov. 8, 2017).

[6] Assoc. Press, El Salvador Jesuits Seek Reopening of Case in 1989 Massacre, N.Y. Times (Nov. 16, 2017); Lafuente, A halo of justice in the killing of the Jesuits in El Salvador, El Pais (Nov. 17, 2017.

Update on Status of Extradition of Defendants in Spain’s Criminal Case Regarding the 1989 Salvadoran Murders of the Jesuit Priests

Previous posts have reported that the National Court of Spain in 2008 commenced a criminal investigation of the 1989 murder of six Jesuit priests and their housekeeper and her daughter in El Salvador. In May 2011 the Spanish court issued the equivalent of an indictment of 20 former Salvadoran military officials for their alleged involvement in those murders.[1]

One of these defendants had died; one had been living in the U.S.; two have been cooperating with the Spanish investigation; and the whereabouts of three are unknown. The other 13 are believed to be living in El Salvador.

Ever since May 2011 Spanish authorities have been seeking extradition of 13 of these men from El Salvador and one from the United States. But extradition has not happened yet. Here is an update on the status of those efforts.

Developments in El Salvador

In December 2011 Spain requested extradition of 13 of them who were then believed to be in El Salvador. In May 2012, however, the Supreme Court of El Salvador denied extradition of the 13 on the ground that the country’s constitution prohibited extradition of its citizens.

In August 2015, in an unrelated case, the Constitutional Chamber of the Salvadoran Supreme Court ruled that, according to a treaty on international cooperation in criminal matters to which El Salvador is a party, an INTERPOL red notice requires both the identification of the location of the defendants and their arrest and detention pending an additional filing, such as an extradition request. This decision appeared to be in direct conflict with the just mentioned Court’s May 2012 ruling against extradition in the Spanish case.[2]

In response to the August 2015 ruling, the Salvadoran Human Rights Ombudsman, David Morales, on November 16, 2015, petitioned the country’s Supreme Court to review its 2012 decisions refusing to arrest and order the extradition of 13 former military officials who were subjects of the INTERPOL arrest warrants.[3]

The Ombusman also issued a resolution asking Spanish authorities to re-issue the arrest warrants for extradition purposes in this case. This request was endorsed in the Spanish case by the U.S.-based Center for Justice and Accountability (CJA) and the Spanish Association for Human Rights (APDHE).

On January 4, 2016, the Spanish court’s Judge Velasco honored that plea by requesting INTERPOL to re-issue the international arrest warrants for all the Jesuit Massacre case defendants who reside in El Salvador for their extradition to Spain to face the charges.

On January 6, the Salvadoran government said it will cooperate in the execution of those warrants and the extradition of former Salvadoran military officials and soldiers, but that the country’s Supreme Court would make the final decision.

In February 2016 Salvadoran authorities arrested and detained four of the former Salvadoran military officials who are sought for this Spanish criminal case. The four were former colonel Guillermo Alfredo Benavides Moreno; former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. The Salvadoran National Civilian Police (PNC) force said that it would “continue the search and capture of the rest of the wanted persons and will inform the public in the opportune moment.” To date, however, no additional arrests have been reported.

On July 14, 2016, the full Supreme Court of El Salvador was scheduled to release its decision on the latest request to issue extradition warrants in this case. The day before, however, the Constitutional Chamber of the Court decided that the country’s Amnesty Law was unconstitutional, which was discussed in a prior post. As a result, the full Supreme Court stayed further proceedings about the extradition warrants.

On August 16, 2016, the Supreme Court unanimously, 15-0, decided that former colonel Guillermo Alfredo Benavides Moreno could not be extradited.[4] The court, 11-4, also ordered that Benavides be detained in a Salvadoran prison in accordance with his conviction and imposition of a 30-year sentence by a Salvadoran court before passage of the amnesty law; after the passage of that law Benavides was released from prison. As a result, extradition was barred by a provision of the El Salvador-Spain extradition treaty that says extradition can be denied “if the person whose extradition is requested “has been tried and finally acquitted or convicted [of the same crime].”

The Supreme Court, however, has not yet ruled on the request to extradite the other three men– former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. They also were tried by a Salvadoran court for illegal homicide, which is an essential element of the crime now being pursued in Spain, but these three men were acquitted in a Salvadoran trial with many alleged irregularities. Strict application of the rationale of the above Supreme Court decision and the cited provision of the extradition treaty and the underlying notion of no double jeopardy suggest that they too should not be subject to extradition, but the irregularities in their trial are impediments to that analysis.[5] We now await the Salvadoran Supreme Court’s ruling on these three men.

Developments in United States

As explained in a prior post, a Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina on February 5, 2016, upheld the requested extradition of Orlando Montano Morales to Spain in this case. https://dwkcommentaries.com/2016/02/06/resumption-of-spanish-criminal-case-over-1989-salvadoran-murder-of-jesuit-priests/

On April 1, 2016, Montano filed in that court an Application for a Writ of Habeas Corpus, which is the only way for him to appeal or challenge that decision.[6]

On April 26, the U.S. moved to dismiss that habeas application. Its brief argued that the certification of extraditability would not be overturned if there was any evidence warranting the finding that there was a reasonable ground to believe that the individual was guilty of the crime in the foreign country and that there was such evidence in this case. On June 10 the U.S. submitted its reply to the petitioner’s opposition to the dismissal motion; it argued that the response raised no issues needing further rebuttal.[7]

Montano Morales, however, was not finished. On July 21, he submitted another brief arguing that there was insufficient evidence to support the certification order’s probable cause conclusion. He also asserted that the court should consider certain declassified U.S. government cables with respect to the probable cause conclusion. On August 10, the U.S. again rejected Montano’s arguments, emphasizing that the habeas review was “limited to ascertaining ‘whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty of the asserted crimes’” and that there was such evidence.[8] (Emphasis added.)

The matter is now submitted for decision by U.S. District Judge Terrance W. Boyle.

According to Patty Blum, senior legal adviser with the Center for Justice and Accountability, which filed the original complaint in the Jesuit case with the Spanish court in 2008 and which supported the request for extradition of Montano, the habeas corpus application is unlikely to “get much traction substantively” as the order granting extradition already rejected the core arguments of the new petition and the Magistrate Judge “did a thorough job of reviewing the record and giving a reasoned, detailed opinion.”[9]

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[1] Prior posts covered the marvelous ministries of these Jesuit priests and their university (University of Central America or UCA); the circumstances of their horrible murders; the Salvadoran military’s attempted cover-up of their involvement in these crimes; the flawed Salvadoran criminal prosecution of a few of the military personnel so involved and their absolution by a Salvadoran amnesty law; the investigation and report on these crimes by the Truth Commission for El Salvador; other legal proceedings regarding these crimes; the Spanish criminal case over these crimes; El Salvador’s 2012 denial of Spain’s request for extradition of most of the suspects in the case; and the commemoration of the 25^th anniversary of the Jesuit martyrs in November 2014. These posts are identified in reverse chronological order of posting in a computer-generated list. They also are identified in logical sequence in “The Jesuit Priests” section of my manually prepared List of Posts to dwkcommentaires—Topical: El Salvador. There also is extensive discussion of the Spanish case in the website of the Center for Justice and Accountability, the U.S.-based human rights organization that is involved in that case.

[2] Spanish Judge Re-Issues Request for the Arrest of Military Officials, CJA (Dec. 2015); Dalton, Spain calls for arrest of 18 soldiers accused of killing priests in El Salvador, El Pais (Dec. 23, 2015); Reuters, El Salvador will cooperate in arrest of 17 former soldiers accused of killing priests, Guardian (Jan. 6, 2015); Labrador, Spain orders again capture Jesuit Salvadoran military case, El Faro (Jan. 5, 2016).

[3] Human Rights Ombudsman asks extradition slaughter of Jesuits, El Mundo (Nov. 16, 2015).

[4] Labrador, Arauza & Zabiań, Court refuses to extradite Colonel Benavides, but agrees to send him to prison, El Faro (Aug. 17, 2016); Melendez, Supreme Court Decides Not To Extradite Jesuit Case, LaPrensa Grafica (Aug. 17, 2016); Reuters, El Salvador Court Denies Extradition of former Colonel to Spain, N.Y. Times (Aug. 17, 2016).

[5] The Salvadoran trial was covered in a prior post as was the release of Colonel Benavides under the Amnesty Law.

[6] Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241, et seq, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 1, 2016).

[7] Memorandum in Support of Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 26, 2016); Response in Opposition to Federal Respondents’ Motion To Dismiss Application for Writ of Habeas Corpus, and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (May 18, 2016); United States’ Reply to Petitioner’s Response in Opposition Regarding Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (June 10, 2016).

[8] Supplemental Filing To Support Petition for Write of Habeas Corpus and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (July 21, 2016); Government’s Response to Supplemental Filing To Support Petition for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (Aug. 10, 2016).

[9] Cooper & Hodges, Extradition appeal among setbacks in Jesuit massacre, Nat’l Cath. Rep. (April 13, 2016); Assoc. Press, Ex-Salvadoran colonel fights extradition in Jesuit killings (Apr. 1, 2016).

El Salvador’s Supreme Court Invalidates Salvadoran Amnesty Law

On July 13, the Constitutional Chamber of the Supreme Court of El Salvador decided, 4 to 1, that the country’s amnesty law of 1993 was unconstitutional. This post will examine that decision and a subsequent post will discuss the impact of that decision on the pending criminal case in Spain regarding the 1989 murders of the Jesuit priests in El Salvador.

The Court’s Decision.[1]

The Chamber held that the country’s amnesty law of 1993 was unconstitutional because it was “contrary to the access to justice” and the “protection of fundamental rights” as impeding the state from fulfilling its obligation to investigate, try and punish grave violations of those rights. Indeed, the court said the government has an obligation to “investigate, identify and sanction the material and intellectual authors of human rights crimes and grave war crimes” in its civil war and to provide reparations to victims.[2] The court also suggested that prosecutors begin with about 30 cases highlighted by a U.N. Truth Commission in March 1993.[3] The cases include massacres, assassinations and kidnappings by combatants from both the armed forces and the guerrilla army called the Farabundo Martí National Liberation Front (FMLN). One of the most prominent was the 1989 murders of the Jesuit priests and their housekeeper and her daughter.

The court’s announcement of its decision stated that the 1992 Peace Accords ending the civil war had contained no provision for an amnesty; that the country’s National Assembly had no power to grant an amnesty to persons who had committed crimes against humanity or war crimes constituting grave violations of human rights and that its constitution and international law of human rights required the conclusion of invalidity.

The court also stated that the crimes against humanity during the civil war were not individual and isolated acts, but the result of guidelines and orders issued by organized apparatuses of power with hierarchies of command. This implies criminal responsibility of the direct actors, those who gave the orders for the crimes and those commanders who failed to countermand the orders and thereby failed to exercise control over the hierarchies.

Much to the surprise of this blogger as a retired U.S. attorney, one of the Chamber’s four judges in this very case, Florentine Menendez, made a public statement about the decision. He said, “We’re not raising hatred or reopening wounds,” but rather emphasizing “the strength of the constitution and the right to life and justice” for the victims. The decision rescues “the jurisprudence of the Inter-American system of human rights protection to heal the wounds of the past and finally close the page and get a national reconciliation.”

Positive Reactions to the Decision.[4]

The next day the decision was celebrated at a ceremony in San Salvador’s Cuscatlan Park, the site of a 275-foot granite wall etched with the names of 30,000 civilians killed in the country’s civil war and the locations of nearly 200 massacres committed between 1970 and 1991. Below are photographs of David Morales,El Salvador’s human rights ombudsman, who made remarks that day, and of part of the granite wall.

At this celebration, David Morales said, “If prosecutors and judges are willing to comply with the ruling, it will generate for the first time in El Salvador the first glimmers of reconciliation.” He added that many Latin American countries have already abolished their amnesty laws and begun to prosecute crimes dating to the civil wars and military dictatorships of the late 20th century.

Benjamin Cuellar, former director of the human rights institute at the University of Central America (UCA) and one of the petitioners in the lawsuit, said, “This is the first step that will take El Salvador to true reconciliation; so that the institutions work and bring to justice those who commit crimes, regardless of who they are.”

UCA, the home of the murdered Jesuit priests, stated, “The majority of the victims are more noble than the victimizers. They do not want vengeance, they want the injustice to be recognized. And the State is obliged to honor them. It is time to put the victims in the center. The new phase that is opened for the country is positive, it means an advance for democracy and justice, and constitutes a late but just recognition for those who had been disrespected in their memory and in their pain.”

The Center for Justice and Accountability, which has been involved in various Salvadoran human rights cases, including the Spanish case regarding the murder of the Jesuit priests, said, “Today’s decision marks a moment many of us have hoped for, for a long time, as we struggled by the victims’ side. The victims have been demanding justice since the peace was signed and the brave truth commission report was published. The amnesty law passed only seven days after was a betrayal to the victims’ hopes and the whole peace process. With it, justice was excluded forever. Today’s decision brings back hope for investigation and prosecution both inside and outside the country.”

A group of independent United Nations human rights experts declared: “This historic decision for the country brings hope to victims and confidence in the legal system…. More than twenty years after the end of the conflict, this decision will restore the fundamental rights of victims to justice and full reparations.”

Amnesty International praised the decision: “Today is an historic day for human rights in El Salvador. By turning its back on a law that has done nothing but let criminals get away with serious human rights violations for decades, the country is finally dealing with its tragic past.”

Another voice of support for the decision came in a New York Times editorial calling it “ a remarkable ruling that opens the door for relatives of victims of war crimes to hold torturers and killers accountable.” “However,” the editorial continued, “there appears to be little political will in El Salvador to revisit a painful chapter of its history in courtrooms. Politicians across the political spectrum have questioned the viability of war crimes tribunals at a time when the country’s judicial institutions are overwhelmed by endemic gang violence.” Nevertheless, the Times suggested that El Salvador should create “a prosecution unit and gives it the tools and independence to pursue the most emblematic cases of the conflict” like the El Mozote Massacre,” which has been discussed in prior posts.

Negative Reactions to the Decision.

The lack of political will referenced in the Times editorial can be seen in the country’s President, Salvador Sánchez Cerén, a member of the FLMN, asserted that his government had always been committed to the restoration of the victims of the war and to building a culture committed to human rights. However, he said the court’s decision did not meet “the real problems of the country and far from solving the daily problems of Salvadorans, worsens them. Judgments of the Constitutional Chamber ignore or fail to measure the effects on our living together in society, and do not contribute to strengthening institutionality.”

Another FLMN leader had a similar reaction. The former president of the National Assembly, Siegfried Reyes, said the decision was “surprising and seeks to weaken and hit the governance and hit the security plans that the government is implementing effectively.”

The country’s Minister of Defense, David Munguia Payés, asserted that the decision was a “political error” and would be a setback to the process of pacification which had occurred since the end of the civil war.” He openly worried that the ruling would turn into a “witch hunt.”

Mauricio Ernesto Vargas, a retired general who represented the armed forces in the peace negotiations, said the court’s ruling could intensify political polarization in a country with no shortage of problems: a gang-violence epidemic, a migration crisis, crop failures and economic stagnation.

The country’s Attorney General, Douglas Melendez, had a more nuanced view. He said, “We respect from the institutional point of view this ruling. We will do what we have to do, we will fulfill our constitutional responsibilities.”

The conservative political party ARENA (founded by a leader of the death squads in the 1970s and 1980s, and in control of the government when atrocities like the massacre of the Jesuits occurred and the authors of the amnesty law) published an official statement urging respect for the court’s decisions, but also noting that the decisions would present challenges for the process of reconciliation and the strengthening of democracy and institutions.

Now we will have to see whether this decision leads to any Salvadoran investigations and prosecutions for the serious human rights crimes of its civil war and to a resumption of Spain’s criminal case regarding the 1989 murders of the Jesuit priests. (The latter subject will be covered in a subsequent post.)

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[1] El Salvador Supreme Court (Constitutional Chamber), Press Release (July 13, 2016), http://static.ow.ly/docs/20.%20Comunicado%2013-VII-2016%20Ley%20de%20amnist%C3%ADa_50Yr.pdf; Post war 1993 amnesty law declared unconstitutional, Tim’s El Salvador Blog (July 13, 2016), http://luterano.blogspot.com/2016/07/post-war-1993-amnesty-law-declared.html; Malkin & Palumbo, Salvadoran Court Overturns Wartime Amnesty, Paving Way for Prosecutions, N.Y. Times (July 14, 2016); Maslin, El Salvador strikes down amnesty for crimes during its civil war, Wash. Post (July 14, 2016), https://www.washingtonpost.com/world/the_americas/el-salvador-strikes-down-amnesty-for-crimes-during-its-civil-war/2016/07/14/5eeef2ec-49bf-11e6-8dac-0c6e4accc5b1_story.html.

[2] Prior posts have discussed the Amnesty Law: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case, dwkcommentaries.com (June 11, 2011), https://dwkcommentaries.com/2011/06/11/international-criminal-justice-el-salvadors-general-amnesty-law-and-its-impact-on-the-jesuits-case; El Salvador’s Current Controversy Over Its General Amnesty Law and Supreme Court, dwkcommentaries.com (June 16, 2011), https://dwkcommentaries.com/2011/06/16/el-salvadors-current-controversy-over-its-general-amnesty-law-and-supreme-court; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case. It should be noted, however, that U.S. federal courts have held that the General Amnesty Law is limited to Salvadoran judicial proceedings and thus does not bar U.S. civil lawsuits for money damages against Salvadoran defendants. (El Salvador’s General Amnesty Law in U.S. Federal Courts, dwkcommentaries.com (June 14, 2011), https://dwkcommentaries.com/2011/06/14/el-salvadors-general-amnesty-law-in-u-s-federal-court-cases.

[3] Prior posts have discussed the Truth Commission: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador, dwkcommentaries.com (June 9, 2011), https://dwkcommentaries.com/2011/06/09/international-criminal-justice-the-jesuits-case-in-the-truth-commission-for-el-salvador; The Salvadoran Truth Commission’s Investigation of the 1980 Murders of the Four Churchwomen, dwkcommentaries (Dec. 19, 2011), https://dwkcommentaries.com/2011/12/19/the-salvadoran-truth-commissions-investigation-of-the-murders-of-the-four-american-churchwomen; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case.

[4] Thanks for Tim’s El Salvador Blog (http://luterano.blog spot.com) for much of the information on the reactions to the Chamber’s decision. David Morales: The sentence “is a tool of greater scope to demand justice, DiarioCoLatino (July 14, 2016) http://www.diariocolatino.com/david-morales-la-sentencia-es-una-herramienta-de-mayores-alcances-para-exigir-justicia; Dalton, Declared unconstitutional the amnesty in El Salvador, El Pais (July 14, 2016) http://internacional.elpais.com/internacional/2016/07/15/america/1468541983_506876.html.

Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?

As discussed in a prior posts, Spain’s National Court in 2008 commenced a criminal investigation of the 1989 murder of six Jesuit priests and their housekeeper and her daughter in El Salvador. In May 2011 the Spanish court issued the equivalent of an indictment of 20 former Salvadoran military officials for their alleged involvement in those murders.[1]

In December 2011 Spain requested extradition of 13 of them who were in El Salvador and two who were believed to be in the U.S. (Two of the others could not be located, another two were in the process of cooperating with the Spanish judge in the case and another had died.) In May 2012, however, the Supreme Court of El Salvador denied extradition of the 13 on the ground that the country’s constitution prohibited extradition of its citizens while one of those was in the U.S. in U.S. custody on criminal charges (Inocente Orlando Montano Morales). As a result, it appeared that the Spanish case had been road-blocked

Now there are signs in the U.S., Spain and El Salvador that the case will be resumed.

U.S. Court Approves Extradition of a Salvadoran Suspect to Spain

On April 8, 2015, the U.S. Department of Justice filed a complaint for U.S. extradition of Montano to Spain. A hearing on that complaint was held on August 19, 2015, before U.S. Magistrate Judge Kimberly Swank, U.S. District Court (Eastern District, North Carolina).[2]

On February 5, 2016, the Magistrate Judge issued her decision upholding the requested extradition. She agreed with the Spanish evidence that showed that Mr. Montano was present at a meeting of the military high command that ordered the murders, which were carried out by an elite Salvadoran unit trained by the U.S. military. “A government official who acts in collaboration with others outside the scope of his lawful authority,” she wrote, “may reasonably be considered a member of an armed gang under the Spanish terrorist murder statute.”[3]

The key conclusions of the decision were: (a) “There is currently in force an extradition treaty between the United States and Spain;” (b) Montano “was charged in Spain with extraditable offenses under the terms of the extradition treaty between the United States and Spain, namely the terrorist murder of five Jesuit priests of Spanish origin and nationality;” and (c) “Probable cause exists to believe [Montano] committed the charged offenses of terrorist murder.”

Therefore, the Magistrate Judge concluded that Montano was subject to extradition and certified this finding to the U.S. Secretary of State as required by 18 U.S.C. § 3184.

The Center for Justice and Accountability (CJA), which has supported the extradition of Montano, said that this decision was “thorough, erudite and sweeping in scope [and] turns on a central legal ruling: As a government official, Montano collaborated with others to carry out the murders, acting beyond the scope of his official authority. As such, Montano can be considered a terrorist. This finding is a vindication of the years of struggle of the Salvadoran people against a repressive military which tried to turn reality on its head by calling anyone who defied it – including the Jesuits priests – terrorists. It is gratifying that a US court has recognized the true reality and named its leaders, Montano one of the most powerful, what they were – terrorists.” CJA added: “The Assistant U.S. Attorney was persuasive in all aspects of his arguments, ably representing the interests of Spain in the U.S. judicial process.”

Carlos Martín Baró, the plaintiff in CJA’s Jesuits Massacre Case in Spain and brother of Father Ignacio Martín Baró, S.J., one of the murdered priests, said: “My brother had a broad desire to help people. When he encountered the poverty and inequality of El Salvador, he realized the problem was deeper, and he dedicated his entire life to helping the people of that country. The fact that the Colonel Montano may face trial in Spain won’t heal the pain but is a victory for all people who seek justice.”

Under the previously mentioned U.S. federal statute (18 U.S.C. § 3184) the Secretary of State “shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.” This statute on its face does not appear to grant the Secretary the discretion to deny the request for extradition. Moreover, since the U.S. Department of Justice brought the prosecution of Montano for immigration fraud and then for his extradition, it appears exceedingly unlikely that Secretary of State John Kerry would not provide the necessary warrant for extradition.

Now we wait to see if Montano exercises his right under Federal Rule of Civil Procedure 73 (c) and Federal Rule of Appellate Procedure 4(a) to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit within 30 days “after entry of the judgment or order being appealed from,” which presumably is February 5.

Spain and El Salvador’s Apparent Cooperation on Extradition of Other Suspects

In August 2015, in an unrelated case, the Constitutional Chamber of the Salvadoran Supreme Court ruled that, according to a treaty on international cooperation in criminal matters to which El Salvador is a party, an INTERPOL red notice requires both the identification of the location of the defendants and their arrest and detention pending an additional filing, such as an extradition request. This decision appears in direct conflict with the Court’s May 2012 ruling against extradition in the Spanish case over the Jesuit murders.[4]

In response to this recent ruling, on November 16, 2015, the Salvadoran Human Rights Ombudsman, David Morales, petitioned the country’s Supreme Court to review its 2012 decisions refusing to arrest and order the extradition of 11 former military officials who were subjects of the INTERPOL arrest warrants,[5]

The Ombudsman also issued a resolution asking Spanish authorities to re-issue the arrest warrants, for extradition purposes in the Jesuits Massacre Case. This request was endorsed in the Spanish case by CJA and the Spanish Association for Human Rights (APDHE).

On January 4, 2006, the Spanish court’s Judge Velasco honored that plea by requesting INTERPOL to re-issue the international arrest warrants for all the Jesuit Massacre case defendants who reside in El Salvador for their extradition to Spain to face the charges.

On January 6, the Salvadoran government said it will cooperate in the execution of those warrants and the extradition of 17 former Salvadoran military officials and soldiers (one of whom is the previously mentioned Montano in the U.S.), but that the country’s Supreme Court would make the final decision.

On the other hand, a former Salvadoran Defense Minister, Humberto Corado, who was not involved in the killings, has requested support for those subject to the INTERPOL arrest warrants from the ARENA political party because their party members were the government officials in charge at the time of the killings and issued orders that the military carried out. He also argued that the country’s amnesty law should prevent the Spanish case from proceeding further,[6]

On February 5 and 6, 2016, Salvadoran police detained four of the 17 former military officials. The police also are looking for the other 12 (excluding Montano). This is despite some earlier police reluctance to do so. These arrests and searches are seen as a first step towards extradition. These actions were endorsed on February 6 by President Salvador Sanchez Ceren, who stressed that the country was “committed to comply with international standards” and that there were INTERRPOL red notices calling for arrest. He also urged those subject to arrest to comply for decision on extradition to be made by the Supreme Court.[7]

Conclusion

There now appears to be some hope that those accused of complicity in the murder of the Jesuits will face criminal charges in Spain. The main obstacle now is the Salvadoran Supreme Court, which will have to decide whether the new arrest warrants and request for extradition will be honored.

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[1] Prior posts that were tagged “Jesuits” covered the marvelous ministries of these Jesuit priests and their university (University of Central America or UCA); the circumstances of their horrible murders; the Salvadoran military’s attempted cover-up of their involvement in these crimes; the flawed Salvadoran criminal prosecution of a few of the military personnel so involved and their absolution by a Salvadoran amnesty law; the investigation and report on these crimes by the Truth Commission for El Salvador; other legal proceedings regarding these crimes; the Spanish criminal case over these crimes; El Salvador’s 2012 denial of Spain’s request for extradition of most of the suspects in the case; and the commemoration of the 25^th anniversary of the Jesuit martyrs in November 2014.

[2] Prior posts that were tagged “Montano” discuss the U.S. prosecution, conviction and imprisonment of Montano for U.S. immigration fraud and the proceedings for his extradition to Spain. See also CJA, U.S. Extradition of Montano; Drew, Unusual extradition fight plays out over priests’ slayings, Yahoo News (Aug. 18, 2015); Hodge, Former colonel faces extradition for charges of plotting Jesuits’ slayings, Nat’l Catholic Reporter (Aug. 24, 2015).

[3] Certification of Extraditability & Order of Commitment, In re Request By Spain for the Extradition of Inocente Orlando Montano Morales (No. 2:15-MJ-1021-KS, U.S. Dist. Ct., E. D. N.C., N. Div. Feb. 5, 2016); CJA Press Release, Judge Grants Extradition of Salvadoran Colonel Accused in Jesuit Massacre (Feb. 5, 2015); Malkin, U.S. Judge Approves Extradition of Former Salvadoran Colonel, N.Y. Times (Feb. 5, 2016).

[4] CJA, Spanish Judge Re-Issues Request for the Arrest of Military Officials, CJA (Dec. 2015); Dalton, Spain calls for arrest of 18 soldiers accused of killing priests in El Salvador, El Pais (Dec. 23, 2015); Reuters, El Salvador will cooperate in arrest of 17 former soldiers accused of killing priests, Guardian (Jan. 6, 2015); Labrador, Spain orders again capture Jesuit Salvadoran military case, elfaro (Jan. 5, 2016).

[5] Human Rights Ombudsman asks extradition slaughter of Jesuits, El Mundo (Nov. 16, 2015).

[6] Serrano, They asked military support of ARENA and right before the event of murdered Jesuits, LaPagina (Jan. 6, 2016).

[7] President recommends involved in Jesuit case to be delivered, Diario CoLatino (Feb. 6, 2016); Labrador, Captured soldiers accused in the Jesuit case, Elfaro (Feb. 5, 2016); PNC Accused Military Capture Jesuit Case, DiarioLatino (Feb. 5, 2015); Labrador, Police are still resisting capture by military Jesuit Case, Elfaro (Jan. 25, 2016).

U.S. District Court Decides that Former Somali Government Official Is Not Entitled to Common Law Immunity and Is Liable for $21 Million of Compensatory and Punitive Damages

Mohamed_ali_samater1 — Mohamed Ali Samantar

As discussed in a prior post, the U.S. Supreme Court in 2010 decided that former Somali General Mohamed Ali Samantar was not covered by the immunity provisions of the Foreign Sovereign Immunities Act (FSIA) and remanded the case to the U.S. District Court for the Eastern District of Virginia to determine if he was entitled to common law immunity.

This was in a case brought by four Somalis against Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

USDistCtEDVA — U.S. District Court, Alexandria, VA

After remand, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia in Alexandria [2] first decided that Samantar was not entitled to any common law immunity. She then decided that $21 million of compensatory and punitive damages were appropriate. Those decisions will now be reviewed.

No Common Law Immunity

On February 14, 2011, the U.S. Government provided the court with a letter from Harold Koh, the State Department’s Legal Adviser, stating that the Department had determined that Samantar did not enjoy immunity from this lawsuit. The key reason for this decision was the lack of any recognized Somali government that could assert or waive any immunity he might enjoy.

The formal U.S. filing with the court provided the relevant common law of immunity for former foreign government officials or what the filing called “Foreign Official Immunity Doctrine.” Here are the key points of that common law or doctrine without the filing’s citations of legal authority:

Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
“This deferential judicial posture was not merely discretionary [for the courts], but was rooted in the separation of powers.” Under the Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
“The immunity of a foreign state was, early on, generally understood to extend not only to the state, heads of state, and diplomatic officials, but also to other officials in an official capacity.”
Any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, there is no one that can assert such a claim or make such a waiver.
When a former foreign official becomes a resident of the U.S., as Samantar had since 1997, the U.S. has a right to exercise jurisdiction over that individual.
The U.S. Supreme Court in this case agreed with the government’s position that FSIA did not apply to the issue of immunity for current or former foreign government officials. Instead, that issue was left to the State Department, whose decisions should be accepted by the courts.

On February 15, 2011 (the day after the above government filing), Judge Brinkema issued a one-page order. It stated, “The government has determined that the defendant does not have foreign official immunity. Accordingly, defendant’s common law sovereign immunity defense is no longer before the Court . . . .” The court then directed the parties to agree upon a date to argue the remaining issues in the defendant’s dismissal motion.

Samantar’s motions for reconsideration of this order and for a stay pending appeal were denied. Nevertheless, he appealed to the Fourth Circuit (No. 11-1479), and on May 16, 2012, the appeal was argued to the appellate court, which as of September 13th had not yet issued its decision. In my opinion, he has virtually no chance of success on this appeal.

The Court’s Determination of Damages

The district court on August 28, 2012, determined that each of the seven plaintiffs was entitled to $1 million of compensatory damages plus $2 million of punitive damages for a total judgment of $21 million. How the court came to this determination is a fascinating story.

After the court’s rejection of his immunity defense, Samantar moved for summary judgment on the grounds that the latest complaint failed to state a claim for his secondary liability, that the TVPA did not retroactively apply to acts before 1991 and that the claims were untimely and nonjusticiable. That motion was denied on December 22, 2011.

Two days before the scheduled start of a jury trial on February 21, 2012, Samantar advised the court that he had filed for bankruptcy in the Eastern District of Virginia (1-12-bk-11085). The automatic stay of this case by the bankruptcy filing was soon lifted, and the start of the jury trial in the main case was rescheduled for February 23rd.

On February 23rd Samantar’s attorney informed the court that Samantar intended to take a default rather than contest liability and damages. The court then asked the defendant questions about this decision and was satisfied that he knowingly and voluntarily had conceded liability.

On August 28th the court filed its Memorandum Opinion that made extensive findings and legal conclusions regarding Samantar’s liability under theories of aiding and abetting and command responsibility.

After noting that compensatory damages were recoverable for physical and psychological injuries, the court found that the plaintiffs had provided the following “credible and compelling testimony of cognizable injuries stemming from the alleged violations:”

Plaintiff Yousuf had endured torture and seven years of imprisonment, largely in solitary confinement that had affected his memory and emotional health. He suffers from depression and nightmares and still relives the five-step length of his cell.
Plaintiff Baralle was tortured and barely escaped execution. He continues to experience pain and occasional shaking on the left side of his body as well as flashbacks. His two brothers were executed, and Baralle and his family have taken responsibility for raising his brothers’ children.
Plaintiff Gulaid went before a firing squad, but escaped death. He continues to suffer nightmares, flashbacks and anxiety, memory loss, high-blood pressure and poor vision.
Plaintiff Aziz and his sister testified about the extrajudicial executions of their father, who was the family’s breadwinner, and their brother.

The court then found that each of the three plaintiffs suing in their own capacity and each of the four decedents’ estates would be awarded compensatory damages of $1 million.

After finding that there was evidence of Samantar’s conduct having been intentional, malicious, wanton and reckless and that ATC and TVPA cases commonly awarding punitive damages, the court determined that $2 million of such damages for each of the seven claimants was appropriate. Such amount, said the court, reflected the “seriousness of [his] . . . uncontested conduct;” [eased] . . . any burden on plaintiffs in having to bring this case;” and recognized the award of substantial compensatory damages, the lack of any financial gain by Samantar and his prospective bankruptcy.

The execution of the judgment was stayed pending resolution of the bankruptcy case.

Conclusion

The ability of the plaintiffs to collect any significant amount of their $21million judgment is highly questionable. On April 3, 2012, the Chapter 7 Bankruptcy Trustee reported Samantar had no assets available for distribution to creditors, but for unknown reasons that report was withdrawn on June 11th.

On August 23rd the plaintiffs commenced an adversary proceeding against Samantar in the bankruptcy court to have his judgment debt to them determined to be a non-dischargeable debt for willful and malicious injury under Bankruptcy Code § 727 (1:12-ap-01356). If the bankruptcy court agrees, this merely keeps open the possibility of future collections on the judgment if Samantar obtains any future assets or income.Judge L:

[1] This case was supported by the Center for Justice and Accountability, an human rights NGO based in San Francisco, California.

[2] Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.