Jose Guillermo Garcia – Page 2

The Salvadoran Truth Commission’s Investigation of the Murders of the Four American Churchwomen

We already have discussed the mission work in El Salvador of the four American churchwomen, their December 1980 brutal murders, the subsequent non-judicial and judicial investigations and successful Salvadoran criminal prosecutions for these crimes.[1]

The Truth Commission for El Salvador also investigated these crimes and its March 1993 report found:

the December 2, 1980, arrests and murders of the churchwomen had been planned prior to the arrival of two of them that evening from Nicaragua;

the National Guard deputy sergeant in charge that night of the killing was carrying out the orders of a superior officer;

the Director-General of the National Guard at the time, Carlos Eugenio Vides Casanova, and other high security forces officers knew that members of the National Guard had committed the murders pursuant to orders of a superior officer and were in charge of covering up those facts;

Vides Casanova and another officer impeded the gathering of evidence and thereby adversely affected the judicial investigation of the crimes;

the two Salvadoran military investigations of this crime (Monterrosa and Zepeda) were not serious and instead sought to conceal the involvement of higher officials;

the Minister of Defense at the time, General Jose Guillermo Garcia, made no serious effort to conduct a thorough investigation of responsibility for the murders; and

the State of El Salvador failed in its responsibility to conduct a thorough and fair investigation of the crime and to find and punish the culprits.[2]

[1] See Post: The Four American Churchwomen of El Salvador (Dec. 12, 20111); Post: The December 1980 Murders of the Four Churchwomen in El Salvador (Dec. 14, 2011); Post: Non-Judicial Investigations of the 1980 Murders of the Four Churchwomen (Dec. 16, 2011); Post: Judicial Investigations and Criminal Prosecutions of the 1980 Murders of the Four Churchwomen in El Salvador (Dec. 18, 2011).

[2] Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador at 62-66 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html. See Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011) (summary of the Commission’s mandate and procedures).

Non-Judicial Investigations of the 1980 Murders of the Four Churchwomen in El Salvador

On December 2, 1980, four American churchwomen were beaten, raped and murdered in the countryside 15 miles from the country’s international airport.[1]

This was a huge problem for the governments of the U.S. and El Salvador because four religious missionaries who were U.S. citizens had been brutally raped and murdered and because there was a huge public outcry in the U.S. for investigation and prosecution of those responsible. Continuation of U.S. military aid to El Salvador was also at risk. Immediately after the discovery of the murders, President Carter suspended $25 million of aid (with restoration 10 days later), and in 1983 Congress voted to withhold $19 million in aid pending a verdict in the criminal case discussed below.[2]

There were five non-judicial investigations of the crime.

The first investigation was initiated on December 6, 1980 (four days after the murders), by President Jimmy Carter, when he appointed William G. Bowdler, a State Department official, and William D. Rogers, a former Department official, to go to El Salvador and investigate the case. They went and said they had found no direct evidence of the crime or of involvement of Salvadoran authorities, but that there had been a cover-up of the murders.[3]

The Junta then governing El Salvador started the second investigation by putting Colonel Roberto Monterrosa in charge of an official commission of investigation. Later he admitted that his commission had excluded the possibility that Salvadoran security forces had been involved in the crime because that would have created serious difficulties with those forces. He hid from the U.S. Embassy evidence implicating a deputy sergeant of the Salvadoran National Guard. In short, Monterrosa did not conduct a thorough, honest investigation.[4]

Simultaneously with the Monterrosa commission, the Director-General of the National Guard, Carlos Eugenio Vides Casanova, started a third investigation. He put Major Lizandro Zepeda in charge. Zapeda reported there was no evidence that National Guard personnel had committed these crimes while he simultaneously ordered the actual Guard perpetrators to replace their rifles to avoid detection and to remain loyal to the National Guard by suppressing the facts. There is also evidence that Zapeda kept his superior, Vides Casanova, informed of the details of the investigation.[5]

The fourth investigation was conducted by former U.S. federal judge Harold R. Tyler, Jr. at the appointment of the U.S. Secretary of State. He concluded that the purpose of the Monterrosa and Zapeda investigations had been to establish written precedents clearing the Salvadoran security forces of blame for the crimes. Tyler also concluded that senior officers had not been directly involved in the crimes themselves although it was quite possible that General Vides Casanova, who had been the commander of the National Guard at the time and was then the Salvadoran Minister of Defense, was aware of the cover-up. Indeed, the deputy sergeant immediately had confessed his involvement to his superiors, who kept this secret and took other steps to make detection more difficult. [6]

In December 1981 Colonel Vides Casanova appointed Major Jose Adolfo Medrano to conduct a fifth investigation.[7]

As the first four of these investigations were proceeding, the Salvadoran government announced that it had sent to the FBI for analysis new evidence, including fingerprints of Salvadoran police and military personnel who had been stationed in the area of the national airport on December 2. Subsequently there were reports in late April 1981 that the FBI had concluded that certain evidence pointed to six Salvadoran National Guardsmen as the killers.[8]

Several weeks after this report about the FBI conclusions, six Salvadoran Guardsmen were arrested to start a Salvadoran judicial investigation and eventual prosecution of this crime. The next post in this series will look at this judicial investigation and prosecution.

[1] See Post: The Four American Churchwomen of El Salvador (Dec. 12, 2011); Post: The December 1980 Murders of the Four Churchwomen in El Salvador (Dec. 14, 2011).

[2] Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador at 65 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html [Commission Report]; Chavez, 5 Salvadorans Are Found Guilty in Slaying of U.S. Churchwomen, N.Y. Times (May 25, 1984).

[3] Onis, U.S. Officials Fly to El Salvador to Investigate Murders, N.Y. Times (Dec. 7, 1980); Commission Report at 63. Bowdler was Assistant Secretary of State for Inter-American Affairs and a former U.S. Ambassador to El Salvador (1968-71). In the Ford Administration Rogers served as Assistant Secretary of State for Inter-American Affairs and Under Secretary of State for Economic Affairs.

[4] Commission Report at 63-64.

[5] Id.

[6] Id. at 63-65; Bonner, Cover-Up Charged in Death of Nuns, N.Y. Times (Feb. 16, 1984).

[7] Commission Report at 64.

[8] Schumacher, Salvadoran Discloses New Evidence in the Murder of Four U.S. Missionaries, N.Y. Times (Mar. 14, 1981); Assoc. Press, Link of Salvadoran Soldiers to Killing of 4 Reported, N.Y. Times (April 27, 1981).

Former Salvadoran Generals Held Liable by U.S. Courts for $54.6 Million for Failure To Stop Torture

We have seen the development of the U.S. federal courts use of the Alien Tort Statute (ATS) starting with the 1980 decision of the U.S. Court of Appeals for the Second Circuit and the 2004 decision of the U.S. Supreme Court.[1]

In 2005 former Salvadoran Generals Jose Guillermo Garcia and Carlos Eugenio Vides Casanova were unsuccessful in their defense against Alien Tort Statute (ATS) and Torture Victims Protection Act (TVPA) claims by three Salvadoran refugees who allegedly were tortured by Salvadoran military personnel at various times from 1979 to 1983.[2]

The defendants in pre-trial proceedings moved for dismissal of the case that was brought in 1999 on the basis of the 10-year U.S. statute of limitations. This motion was denied with the trial court leaving the issue of equitable tolling or suspension of the statute of limitations to be resolved by a lay jury. In 2002, after a four-week trial and 20 hours of deliberation, the jury returned a verdict for the plaintiffs, concluding that the statute of limitations was tolled or suspended until the end of the Salvadoran civil war in 1992. The amount of the verdict was $54.6 million.[3]

The defendants appealed with the sole issue on appeal being the tolling or setting aside the statute of limitations.

Affirming the lower court, the federal appeals court stated, “The record swells with evidence regarding the brutality and oppression that the Salvadoran military visited upon the people of El Salvador. The evidence includes reports on abductions, torture, and murder by the military. The evidence reveals a judiciary too meek to stand against the regime.” Moreover, the appellate court endorsed the trial court’s finding that the plaintiffs “legitimately feared reprisals from the Salvadoran military, despite the fact that the defendants resided in the United States. The military regime, in which both Garcia and Casanova had held positions of great influence, remained in power. State-sponsored acts of violence and oppression continued to ravage El Salvador. The very regime against whom the plaintiffs leveled their accusations remained intent on maintaining its power at any cost and acted with impunity to do so.” Thus, held the appellate court, the trial court did not abuse its discretion by tolling the statute of limitations until the end of the civil war in 1992.[4]

The defendants did not request the U.S. Supreme Court to review the appellate court’s decision. As a result, the case is over except for the plaintiffs’ efforts to collect the $54.6 million judgment. So far they have collected $300,000.

Parenthetically, both of the former Generals in this case have been charged with violations of U.S. immigration laws.

In early 2009, Garcia was indicted by the U.S. government for illegally entering the U.S. with a Salvadoran passport he had obtained by fraudulently telling Salvadoran officials that he had lost his prior passport when in fact it had been seized by U.S. authorities and for falsely telling the latter officials his attorney had told him that the passport had been lost. In September 2009, the indictment was dismissed upon corroborated evidence that his attorney had given him advice about his ability to obtain a substitute Salvadoran passport.[5]

Casanova was charged with assisting or otherwise participating in torture in El Salvador as grounds for removal or deportation from the U.S. The removal hearing in Orlando, Florida took place in April and May 2011, and a decision is expected in early 2012.[6]

This case is also instructive on how to prove under the ATS or TVPA that superior officials had knowledge of human rights abuses by their subordinates. One of the plaintiffs’ witnesses was a researcher at Amnesty International (AI) during the period in question. He testified to its practice of Urgent Actions to solicit letters from AI members to government officials about human rights abuses in their countries, its Urgent Actions about El Salvador, and a response to one of the letters from one of the defendants thanking the letter-writer for his interest.[7] This experience suggests that organizations like AI should keep good records of its requests for letters to be sent to government officials and should develop a practice of keeping copies of such letters or urging the authors of the letters to keep copies.

[1] See Post: U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2001); Post: The Alien Tort Statute, 1980-2004 (Oct. 25, 2011); Post: The Alien Tort Statute Interpreted by the U.S. Supreme Court in 2004 (Nov. 9, 2011).

[2] Arce v. Garcia, 434 F.3d 1254, 1255-57 (11th Cir. 2005). The plaintiffs also asserted claims under the U.S. Torture Victims Protection Act (TVPA), 28 U.S.C. § 1350 footnote. The case was brought on behalf of the plaintiffs by the Center for Justice and Accountability, a San Francisco NGO that is “dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress.” (CJA, About Us, http://www.cja.org/article.php?list=type&type=86; CJA, Arce v. Garcia and Casanova, http://www.cja.org/article.php?list=type&type=82.

[3] 434 F.3d at 1255. The trial evidence included the Report of the Truth Commission for El Salvador.

[4] Id. at 1263-65. The court of appeals earlier had reversed the jury verdict on the ground that there were no equitable circumstances warranting the tolling of the statute of limitations. (Arce v. Garcia, 400 F.3d 1340 (11th Cir. 2005).) The court, however, on its own motion, vacated this prior ruling and affirmed the judgment against the defendants. (434 F.3d at 1255.)

[5] Indictment, U.S. v. Garcia, No. 09-20045 CR-Seitz (S.D. Fla. Jan. 22, 2009); U.S. Attorney’s Office, S.D. Fla., Press Release: Former Salvadoran Defense Minister Charged with Immigration Violations (Jan. 23, 2009), http://www.usdoj.gov/usao/fls/PressReleases/090223.html; Order for Dismissal, U.S.A. v. Garcia, No. 09-20045-CR (Sept. 30, 2009).

[6] Preston, Salvadoran in Florida Faces Deportation for Torture, N.Y. Times (April 17, 2011); CJA,CJA Reporting from Vides Casanova Removal Hearing (April 18, 2011); Trial of Vides Casanova, Former El Salvador Defense Minister Accused of Condoning Killing of American Churchwomen, Gets Underway, Fox News Latino (April 19, 2011); Blum, Update: First Round of Testimony–The Removal Case against General Vides-Casanova, Former Minister of Defense of El Salvador, http://www.cja.org (May 2, 2011); Center for Democracy in the Americas, El Salvador Update–April 2011 (May 4, 2011); email, Blum of CJA to author (Sept. 14, 2011).

[7] Michael McClintock, A Glimmer of Justice for El Salvador, amnesty now, Fall 2002, at 12.