What is this case all about?

From late 1979 to early 1981 Colonel Nicolas Carranza served as Vice-Minister of Defense in El Salvador. In that capacity he exercised command over the three units of El Salvador’s notorious Security Forces. During this time the Security Forces, often working as or with plainclothes “death squads,” carried out widespread atrocities against civilians, including opposition political figures, members of labor unions, and people who provided care and education to the public, such as teachers, doctors, rescue workers and priests. Although Colonel Carranza had the power to prevent the gross human rights abuses committed by those under his command, his time as Vice-Minister marks one of the bloodiest periods in Salvadoran history. Experts estimate that 10,000 to 12,000 civilians were killed in 1980 alone. The repression led to a bloody 12-year civil war that claimed the lives of 75,000 people.

Despite being removed from the Vice-Minister position because of his poor human rights record, from mid-1983 to mid-1984 Colonel Carranza returned to a command role as director of the infamous Treasury Police. Despite the conclusions of the U.S. government that a man in Treasury Police custody had been tortured into making a false confession about the murder of a U.S. military advisor, Colonel Carranza failed to punish any of his subordinates who were responsible for the torture.

The suit, entitled Chavez, et al. v. Carranza, seeks to hold Colonel Carranza responsible for human rights abuses committed in El Salvador under his watch. The plaintiffs allege that Carranza is liable under the well established law of command responsibility, which holds a military commander legally responsible for human rights abuses by his subordinates when the commander knew, or should have known, in light of the circumstances at the time, that subordinates had committed human rights violations, and he failed to prevent the abuses or punish those who had committed them.

Who are the plaintiffs?

There are five plaintiffs in this case: Erlinda Franco, Ana Patricia Chavez, Cecilia Santos, Francisco Calderon and Daniel Alvarado.

Erlinda Franco is the widow of Manuel Franco, one of six pro-democracy opposition leaders of the Frente Democrático Revolucionario (Democratic Revolutionary Front, or FDR) who were abducted from a Jesuit school in San Salvador on November 27, 1980 by members of the Security Forces. They were later found murdered, and their bodies showed obvious signs of torture. The assassinations were among the most gruesome and shocking incidents carried out by the Security Forces during 1980, and led directly to the commencement of the full-scale civil war. The U.N. Commission on the Truth for El Salvador found that the FDR murders “outraged national and international public opinion and closed the door to any possibility of a negotiated solution to the political crisis at the end of 1980.”

Ana Patricia Chavez is the daughter of Humberto and Guillermina Chavez, who were members of the teachers union ANDES 21 de Junio. They were murdered in cold blood by plainclothes gunmen in July 1980 in the family’s home in Ahuachapan, El Salvador. Ana Patricia was forced to watch the beating of her mother and listen to the shots that took her life. Ana Patricia now lives in California.

Francisco Calderon was a worker at a cigarette factory in September 1980 when, late one night, uniformed members of the National Police knocked on his door. As he opened the door, plainclothes gunmen grabbed him and forced him to the floor. Francisco’s father, Paco Calderon, a school principal and member of ANDES 21 de Junio, came to the door and told the men to let his son go. The men then tried to carry away Paco Calderon, and when they were unable to do so, they shot him directly in front of his son. Francisco now lives in California.

Cecilia Santos was a student at the National University and employee of the Salvadoran Ministry of Education when she was arrested in a shopping center in San Salvador in September 1980. Cecilia was held in the National Police headquarters for eight days and tortured repeatedly. She was never given adequate legal representation or a fair hearing, and remained in prison for three years. She fled to the U.S. in 1983 after being released under a general amnesty. Cecilia now lives in New York, where she is the director of the Centro Salvadoreño, an organization that encourages socioeconomic and cultural progress among Latino immigrant communities.

Daniel Alvarado was an engineering student in San Salvador in 1983. He was abducted by five men dressed in civilian clothes while he was watching a soccer game at a friend’s house. He was taken to the headquarters of the Treasury Police, where he was tortured severely. In order to stop the torture, Daniel confessed to being involved in the assassination of U.S. military advisor Albert Schaufelberger. After a polygraph examination, U.S. officials correctly concluded that Daniel was not responsible in any way for the assassination and that he had only admitted to the killing in order to stop the torture.

Who is the defendant?

Colonel Nicolas Carranza, a naturalized U.S. citizen living in Memphis, was Vice-Minister of Defense of El Salvador from late 1979 to early 1981. In that position, he exercised command and control over the three units of the Security Forces - the National Guard, National Police and Treasury Police - responsible for widespread attacks on civilians. Despite being removed from his position as Vice-Minister due to U.S. pressure over his human rights record, Colonel Carranza was later brought back in 1983 as head of the brutal Treasury Police, where he exercised command over the members of that group. After being forced out of the Treasury Police, Carranza came to the United States in 1985. He became a U.S. citizen in 1991. In 1984, the New York Times reported that Colonel Carranza had been a paid informant for the CIA.

What do plaintiffs hope to achieve with this case?

The plaintiffs seek justice for themselves and their loved ones. They are motivated by a strong desire to speak out on behalf of their friends and fellow Salvadorans who are unable to speak out - either because they were killed or because they cannot talk about the terrible things that they went through. Often for Salvadorans the pain of remembering what was done to them or what they witnessed is too great, or they fear retaliation against themselves or their family members who still live in El Salvador.

The plaintiffs also seek official acknowledgement by a court of law that Colonel Carranza was responsible for the abuses committed against them. They want to expose to the American public that Carranza failed to stop widespread torture and killings despite having the power to do so. They also want to send the message that the abuses for which Colonel Carranza is responsible were so heinous that they are punishable here in the United States even though justice is not possible in El Salvador.

Through this trial, the plaintiffs hope to prevent Colonel Carranza from enjoying safe haven in this country. He has lived peacefully in the United States for 20 years; he has been a U.S. citizen for 14 years. This is the first time he has ever had to answer accusations that he oversaw pervasive human rights violations in El Salvador. In this sense it is a victory that Colonel Carranza has even been brought to court. The plaintiffs hope that the jury will find Carranza responsible for these abuses but they have already achieved success by reaching trial and having the opportunity to bring to light the injustices that they endured at the hands of the Salvadoran military.

Finally, the plaintiffs will ask for punitive damages in order to deter other military commanders from willfully ignoring the atrocities their subordinates commit.

Who is on the legal team?

The plaintiffs are represented on a pro bono basis by the San Francisco based Center for Justice & Accountability (CJA) and the Tennessee law firm Bass, Berry & Sims, PLC. Lead counsel David Esquivel is a partner in Bass, Berry & Sims’ Nashville office. He and Matt Eisenbrandt, CJA’s Litigation Director, will present the case to the jury. Key members of the trial team are CJA International Attorney Almudena Bernabeu, CJA Senior Legal Advisor Carolyn Patty Blum - a Professor Emeritus at UC Berkeley, Boalt Hall School of Law - and Matt Sinback and Steve Jasper of Bass, Berry and Sims.

What is the broader significance of this case?

The trial against Colonel Carranza is the culmination of CJA’s efforts to hold accountable Salvadoran perpetrators in the United States. This case sends the message that CJA and our Salvadoran partners will continue to pursue human rights abusers until El Salvador takes responsibility for doing so.

In Romagoza Arce v. Garcia and Vides Casanova, CJA’s clients won a $54 million verdict against Generals Jose Guillermo Garcia and Carlos Eugenio Vides Casanova. In 2002, a Florida jury found the generals responsible for the torture of 3 plaintiffs. General Garcia was the Minister of Defense in 1980 when Colonel Carranza served as Vice-Minister of Defense. General Vides Casanova rose to Minister of Defense in 1983, and brought back his classmate Carranza to serve as director of the Treasury Police. Although the U.S. Court of Appeals originally overturned the verdict against the generals because the case was filed beyond the 10 year period mandated in the statute, the court has now vacated that opinion and the verdict stands. Even under the Court of Appeals’ first opinion, the generals were not found to be innocent. Rather, the verdict was set aside for technical legal reasons. Since the Court of Appeals has withdrawn its opinion, the jury’s verdict remains in force.

Last year, in Doe v. Saravia, CJA won a $10 million judgment against Alvaro Saravia for his responsibility in the assassination of revered Salvadoran Archbishop Oscar Romero. It was the only time that a court anywhere in the world has held a person responsible for this infamous murder. The judgment led to calls in El Salvador for a repeal of the Amnesty Law and for the reopening of the investigation into Monseñor Romero’s assassination. Salvadoran president Tony Saca was forced to respond to the court’s finding that Roberto D’Aubuisson, the founder of Saca’s ARENA Party, was the mastermind of the murder plot.

The Carranza trial is the culmination of a concerted effort to hold accountable Salvadoran perpetrators in the United States and to unravel the culture of impunity enjoyed by human rights abusers in El Salvador. If the jury returns a verdict in favor of the plaintiffs, it will be the first time a U.S. jury has held a military commander liable for crimes against humanity.

Why wasn’t the case filed in El Salvador?

On March 20, 1993, five days after the United Nations Truth Commission released its comprehensive report about abuses during the civil war, the Salvadoran Legislative Assembly adopted a blanket Amnesty Law. The Inter-American Commission on Human Rights has strongly criticized the Amnesty Law and held that it violates international law. Judge Oliver Wanger, in his ruling in Doe v. Saravia, concluded that the Amnesty Law “served to stifle discussion of the [Truth Commission] report and frustrated the implementation of its recommendations. This undermined the efficacy and purpose of the entire truth-finding process.” Nonetheless, the Amnesty Law precludes prosecution of Colonel Carranza in El Salvador.

What is the legal basis of the suit?

The Alien Tort Claims Act (ATCA), adopted in 1789, gives survivors of egregious human rights abuses committed anywhere in the world the right to bring lawsuits in U.S. federal court against perpetrators who come to the United States. Since the landmark case Filartiga v. Peña-Irala in 1980, the law has been used successfully in cases involving torture, extrajudicial killing, crimes against humanity and war crimes. It was upheld in 2004 by the Supreme Court in Sosa v. Alvarez-Machain. The Torture Victim Protection Act (TVPA), passed in 1992 and signed into law by President George H.W. Bush, gives similar rights to survivors to bring claims for torture and extrajudicial killing committed abroad “under the actual or apparent authority . . . of any foreign nation.” Under both laws, the perpetrator usually has to be served with the lawsuit in the United States for the court to have jurisdiction.

Do the plaintiffs allege that Colonel Carranza directly committed torture and murder?

No. The plaintiffs allege that Carranza is liable under the established law of command responsibility, which holds a military commander legally responsible for human rights abuses by his subordinates when the commander knew, or should have known, in light of the circumstances at the time, that the subordinates had committed human rights violations and he failed to prevent the abuses or punish those who had committed them. This principal was adopted by the U.S. Supreme Court in the World War II era case Yamashita v. Styer, which upheld the conviction of a Japanese commander for abuses committed by troops under his authority. The doctrine of command responsibility is utilized in the United Nations’ international criminal tribunals for Rwanda and the former Yugoslavia, as well as by the International Criminal Court and national courts in Europe and elsewhere.

Why a civil suit? Why not a criminal prosecution?

In the United States, only government prosecutors have the authority to initiate criminal prosecutions – neither private citizens, nor organizations like CJA, have the authority to file a criminal case. There is a federal statute that allows for criminal prosecution for torture; however, the U.S. Department of Justice (DOJ) has not brought criminal charges in this case. The statute was signed into law in November 1994, and DOJ maintains that it can only prosecute torture committed after that date. The plaintiffs’ claims against Colonel Carranza are for crimes committed between 1980 and 1984, so DOJ would not initiate a prosecution against him.

Despite its power to do so, DOJ has not brought any criminal prosecutions of torturers under the 1994 law. DOJ tried to bring its first case in March 2000, pursuant to a tip from CJA, when a Peruvian security agent believed to have tortured people in Peru in 1996-97 visited the U.S. However, the FBI released the man after the State Department gave its opinion – which was widely criticized – that the Peruvian man had diplomatic immunity.

What is CJA?

The Center for Justice & Accountability is a non-profit international human rights organization based in San Francisco that works to hold human rights abusers accountable. CJA represents survivors of torture and relatives of victims of summary killings in legal cases against human rights violators. CJA seeks to prevent the United States from being a safe haven for torturers by filing civil lawsuits in U.S. courts on behalf of victims. To further its mission of accountability, CJA also pursues criminal prosecutions in national courts abroad. CJA often provides information to U.S. government agencies to help them pursue, prosecute and deport human rights abusers within the U.S. and advocates for appropriate legislation and policies to ensure that human rights violators can be held accountable. CJA was founded in 1998 with initial support from Amnesty International USA and the United Nations Voluntary Fund for the Victims of Torture. CJA receives substantial pro bono support from law firms, lawyers, professors, translators and private investigators around the country.

Can you give examples of other, similar trials?

The first case brought under the ATCA for human rights abuses was Filartiga v. Peña-Irala. In 1976, the father of a young man who had been tortured and killed in Paraguay while in police custody saw the police inspector involved in his son’s torture walking the streets of Manhattan. The father called the Immigration & Naturalization Service, and INS arrested the police inspector for overstaying his visa. The father and sister brought a lawsuit against the inspector and, in 1980, the U.S. Court of Appeals in New York found that torture violated “the law of nations” and upheld their claims. The Filartiga case opened the way for human rights lawsuits to be brought in U.S. courts.

One of the most publicized cases under the ATCA was a suit against former Philippines President Ferdinand Marcos. After he was voted out of power, Marcos moved to Hawaii. Eventually, a U.S. jury found him responsible for the torture and murder of Philippine civilians and ordered his estate to pay nearly $2 billion to his victims.

In 2003, CJA clients won a $4 million jury verdict against Pinochet operative Armando Fernandez Larios for the torture and killing of Chilean economist Winston Cabello. A Miami jury found Fernandez Larios, in his role as a member of the notorious “Caravan of Death,” liable for Winston’s torture and murder. The trial marked the first time any Pinochet operative had been tried in the United States for his role in human rights abuses committed in Chile. The verdict also represented the first time a U.S. jury has held a defendant responsible for crimes against humanity.

In March 2005, California-based Unocal Corp. settled an ATCA lawsuit that alleged the company was responsible for forced labor, rape and murder along its natural gas pipeline in Burma. The suit accused Unocal of aiding and abetting the Burmese military that carried out numerous human rights abuses against civilians.

Have plaintiffs been able to collect on their judgments?

While there have been few successful efforts to collect damages awarded to plaintiffs in these suits, CJA is increasing its dedication to investigating and recovering defendants’ assets. CJA has now launched intensive investigations in several of its cases. Recovery is not easy because many defendants do not keep their assets in the United States or do not have significant assets. However, CJA will devote its efforts to ensuring that Colonel Carranza pays any judgment that may be reached against him.

How does CJA find cases to file?

CJA works with survivor communities, human rights organizations and torture treatment centers throughout the United States to help survivors seek legal remedies for their injuries. In addition, CJA does outreach to the over 500,000 refugees in the U.S. who have endured some form of torture. Along with our Salvadoran clients, CJA represents victims from Bosnia, Chile, China, East Timor, Guyana, Haiti, Honduras, Somalia, Spain and a Middle Eastern country (the name of which we must keep confidential until the case is filed).

What other cases is CJA working on?

CJA represents three Haitian women in a lawsuit against Emmanuel “Toto” Constant for human rights abuses committed in Haiti in 1993 and 1994. Constant was the outspoken leader of a brutal paramilitary organization known as FRAPH (the Revolutionary Front for the Advancement and Progress of Haiti). The group was notorious for a widespread campaign of murder, rape and arson committed against the pro-democracy movement of the poor population of Haiti. Constant fled to the U.S. in 1994. He was ordered deported in 1995 but was released from immigration detention after he gave an interview to 60 Minutes explaining that he had been on the payroll of the CIA. He has remained free in Queens, New York, ever since.

CJA has been heavily involved in the effort to prosecute top Guatemalan perpetrators in Spain. CJA International Attorney Almudena Bernabeu is one of the prosecutors in a criminal case brought by Nobel laureate Rigoberta Menchu against former Guatemalan leaders for the genocide of Mayan civilians in the 1970s and 1980s and the killing of dozens in an attack on the Spanish embassy in Guatemala City.  Recently the Spanish Constitutional Court ruled that the claims of the Guatemalan plaintiffs can go forward because the nationality of the victims (along with that of the perpetrator) is irrelevant in these human rights prosecutions.

CJA currently has two cases in Northern Virginia against military leaders from the bloody regime of Somalia’s former dictator Siad Barre. During the 1970s and 1980s, the Somali Armed Forces, with assistance from security agencies, carried out widespread atrocities against suspected opponents of the military government. The defendants are Mohamed Ali Samantar, who served as Minister of Defense from 1980 to 1986 and Prime Minister from 1987 to 1990, and Yusuf Abdi Ali (a.k.a. Tokeh), the commander of the Fifth Army Battalion from 1984 to 1989.