July 2nd and 3rd, 2002
This report was written by Patty Blum, Clinical
Professor of Law and Director of the International Human Rights Law Clinic
and Mary Beth Kaufman and Daniela Yanai, law students, Boalt Hall School
of Law, University of California at Berkeley.
These two days included the introduction of a new draft of proposed
Jury Instructions, plus testimony by three experts
on Central America, Military Command Structures, and the Salvadoran justice
system:
Michael McClintock, Amnesty International researcher
Colonel Jose Garcia, Argentine Military Command
Expert
Margaret Popkin, Salvadoran Criminal Justice System
Expert
Michael McClintock, Amnesty International researcher
After a long weekend break, the jury returned on Tuesday, July 2 to hear Michael McClintock, formerly a researcher for the Amnesty International (“AI” or “Amnesty”) Secretariat in London, England. McClintock’s focus with Amnesty was Latin America, with a special emphasis on Central America. McClintock described the founding of Amnesty in 1961, as well as the purposes, structure and functioning of the “non partisan” organization. He described the growth of the organization’s emphasis on preventing torture as staff and members became increasingly aware of the regular use of torture against the “prisoners of conscience” for whom AI instituted campaigns.
McClintock’s focus shifted from Argentina to Chile to El Salvador in the mid-70s as disappearances became characteristic of that country as well. He visited the country in 1976 in order to establish contacts with human rights organizations, particularly the Legal Aid Office of the Archbishop. He delivered questionnaires used by Amnesty to record information from witnesses or family members. In late 1979, Amnesty made El Salvador a priority as they increasingly began to receive phone calls, telegrams and telexes about abductions by the government.
As a result, McClintock helped initiate AI’s Urgent Action campaign on Salvadoran cases. A team of three or four people would assess the information received by the organization. The information then would distributed through the Urgent Action network to AI affiliates in over 41countries; these affiliates then distributed the information, including the name of the victim, what happened, by whom and what action should be taken, to their members. The action involved members writing letters, addressed to officials in the military-controlled junta in El Salvador and to Minister of Defense Garcia. Director of the National Guard Vides-Casanova would receive letters as well, if the National Guard was implicated in the capture.
The letters were sent immediately since most instances of torture and extra-judicial assassination occurred within the first few days of abduction. AI felt it extremely important to let Salvadoran military officials know that outsiders were watching their activities. McClintock presented several of the Urgent Action distributions to the jury. He showed how Garcia’s name appeared as the recipient for the correspondence of AI members. In a particularly dramatic moment, plaintiffs’ attorney, Peter Stern, asked McClintock to read a letter sent to an AI member in Omaha, Nebraska from then-Colonel Vides-Casanova. The letter thanked the member for his correspondence, stated that Vides had searched the archives for the victim and denied that the victim was “registered.” Vides Casanova’s response then stated that the AI member’s letter was based on unfounded news accounts, a recurring theme of the generals.
Judge Hurley interrupted McClintock’s testimony on two occasions. For the first time since the trial began, he explained to the jury the relevance of this testimony of “notice” to the generals about grave human rights abuses. He stated that the plaintiffs were proceeding in this case under a legal theory of command responsibility; one major element of proof is whether a military commander – here Generals Garcia and Vides Casanova – knew or should have known that subordinates under their command were committing acts of torture. He emphasized that it is not necessary to accept the contents of the Urgent Actions as true but to assess whether the generals were notified of the acts documented in the Amnesty correspondence.
On the second occasion, Judge Hurley commented on an Urgent Action notice that discussed the capture of two young men. He stated that the jury did not have to hold the defendants responsible for the acts described in the Urgent Action but again emphasized that the testimony and documentary evidence were being offered to show the “notice” element of command responsibility. This time, he explained the entire legal doctrine of command responsibility (he repeated the standard during Colonel Garcia’s testimony the following day). The judge explained that the jury will be determining whether one or both of the defendants are liable, or bear responsibility, for what the plaintiffs say happened to them. The doctrine of command responsibility allows commanders to be held liable for acts committed by their subordinates if the commanders knew or should have known that the subordinate had committed violations of human rights and the commander did nothing to prevent or punish the subordinate officers engaging in those acts.
After the morning break, Stern asked McClintock about the AI human rights reports he had prepared between 1979-1983. The defendants’ lawyer objected. Judge Hurley sustained the objection on the basis that McClintock could not state the reports were sent directly to the defendants but were sent to the Salvadoran government generally. Stern asked for a sidebar with the judge. After the sidebar, Stern asked McClintock to re iterate how many Urgent Actions he distributed. He testified that he sent out 175 Urgent Actions from January, 1980 to June, 1980. He estimated that each generated about 5,000 letters to the Salvadoran military.
On cross-examination, Kurt Klaus, the defendants’ lawyer, asked McClintock about the structure of AI membership, including the fact that anyone who pays a fee can become a member. McClintock emphasized that some AI chapters raise money rather than having a dues structure. Under questioning from Klaus, McClintock got a hearty laugh from the jury and the audience when he stated that he was not a lawyer. McClintock emphasized that Amnesty, as a matter of policy, does not rely on information from members in the country that is the subject of the human rights alerts. Klaus questioned him about his sources of information. McClintock stated that AI members interviewed refugees, had referrals from the Archbishop’s office and always verified sources. At the conclusion of the cross, Klaus questioned McClintock closely on AI’s opposition to the death penalty.
On redirect, Stern questioned McClintock about the need for constant
communication and updating of sources and information. McClintock stated
that AI was careful to “never cry wolf;” that is, to never act
on false information that would undermine their work. AI sees the advantage
of generating letters through the membership, McClintock explained, as
it enhances the weight of the letters if they come from many different
countries. In addition, AI sends duplicates to Congresspeople in order
to get them involved in important cases.
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That morning, before the jury was led into the courtroom, Judge Hurley
brought a new draft of proposed jury instructions for the parties, which
will be further discussed on Monday July 8th. The draft focuses on the
command responsibility instructions, which proved to be pivotal in the
first case against the defendants for the murders of the four American
churchwomen. After the jury had been excused for the day, defense attorney
Kurt Klaus, in an informal discussion of the draft instructions, indicated
that he may argue that those who committed the abuses in question were
not under the command of the defendants.
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Colonel Jose Garcia, Argentine Military Command Expert
Following Michael McClintock, plaintiffs’ lawyers called Jose Garcia, a colonel in the Argentine armed forces and expert in military command structures and the functioning of command responsibility. Professor Garcia, referred to in this way by plaintiff’s lawyer Jim Green in order to avoid confusion with the defendant with the same last name, explained that he had no familial relations to that defendant. Professor Garcia’s testimony, which stretched throughout the afternoon of Tuesday July 2 and much of Wednesday the 3rd, was often interrupted by objections by opposing counsel and included information about his own experience, the command structure of the Salvadoran military forces, and the duty of officers to respond to reports of abuses by subordinates. He emphasized the importance of communication and discipline in military structures.
In the course of establishing his credentials as an expert witness, Professor Garcia told the jury how he had given expert testimony on similar issues in Argentina, El Salvador, Italy and Haiti (the latter at the request of the United Nations). Garcia described his study of the applicable Salvadoran Army ordinances, Code of Military Justice, Constitution and Penal Code, reports from organizations like the United Nations and the Organization of American States, U.S. intelligence cables, and other relevant documents.
Professor Garcia was the first witness of the trial to begin to address the responsibilities of military commanders under both Salvadoran and international law. Many of the jurors took notes about Garcia’s testimony in the notebooks provided by the court. Garcia explained to the jury the history and substance of the 1949 Geneva Conventions, which established norms for military officers in order to avoid abuses to civilians as well as to captured combatants. He also described the law resulting from the Nuremberg and Tokyo tribunals, established to try Nazi and Japanese war criminals after World War II. The professor also discussed the American Convention on Human Rights, which had been mentioned by other witnesses. El Salvador, Professor Garcia explained, is a signatory to the Geneva Conventions and Protocols and the American Convention and therefore, has the responsibility to protect civilians against abuses by those in power. Finally, the Professor explained that he also depended on other sources of information to learn about the real conduct of the military forces in El Salvador during the time period in question not just on written documents.
When asked whether he had formed an opinion as to who exercised real command and control of the military forces in El Salvador from 1979-1983, defense attorney Kurt Klaus objected. His objections were overruled, however, and the Professor answered “General Garcia.”
Professor Garcia’s testimony included a lengthy discussion of the letter by members of the Christian Democratic Party to the High Command of the Armed Forces and the governing junta, which had been introduced in the testimony of former Ambassador Robert White on June 25. Professor Garcia viewed the letter as substantial information from a reliable source that should have prompted an investigation.
When Jim Green asked Professor Garcia whether, to his knowledge, defendant Garcia had ever ordered an investigation of any of the 19 cases mentioned in the letter, Professor Garcia answered “No.” Green followed up by asking, “In your opinion as an expert on military command structures and command responsibility, did General Garcia fail in his duty by not ordering an investigation?” “Yes,” the professor replied. Professor Garcia explained that, although General Garcia had maintained in his deposition that he did not reply because of the threat of a coup, Salvadoran law did not permit such excuses. More specifically, Green asked Professor Garcia if a Minister of Defense who has such credible evidence about abuses by National Guard members should inquire directly with the Director of the National Guard. “Yes,” Professor Garcia answered, “that is the principle of command responsibility. It is his duty and his right to do so.” The professor went on to explain that then-Colonel Vides Casanova, as Director of the National Guard, had a duty to know what was going on in his own headquarters.
Furthermore, because the country was in a state of siege from 1979-1983, it was the duty of the military to try human rights abusers through courts martial or temporary military courts that could be established by the Minister of Defense any place in the country. Furthermore, military commanders had other measures at their disposals, such as administrative transfers. By not taking any of these measures, commanders give the impression that they have “the permission to do anything; that impunity will govern.” As a military commander, Professor Garcia explained, he also would investigate such allegations to prevent himself from being “filled with shame.” He would inspect the smallest room of any place alleged to house abuses, he explained, and would speak personally with any detainees. When asked whether, in the case of General Vides Casanova, the Professor had seen any evidence that logistical problems would have prevented Vides Casanova from investigating allegations of torture in the National Guard, he explained that no extraordinary equipment would be necessary for such an investigation, just “a good pair of shoes.” Nothing prevented Vides from conducting the appropriate investigation into the grave accusations made against the forces under his command.
On cross-examination, Klaus focused on whether high military officials opened their own mail, referring to the thousands of letters of complaint testified to by Michael McClintock. Professor Garcia answered that while he did not know who opened the mail, he assumed that the Minister of Defense and the heads of the various branches of the security forces would be made aware such a large number of complaints. Klaus asked about potential threats to the national security of El Salvador during the time in question, and Garcia answered that the only potential threat would have been from Nicaragua. Klaus read aloud the entire Christian Democratic letter, apparently to emphasize that some civilians were involved with abuses. Garcia quickly followed-up with the statement that the involvement of civilians, in no way, would diminish the command responsibility of an officer over his own subordinates who are participating in abuses. Klaus also posed questions about divisions in military and asked about any breakdown of military command after 1979 coup. Professor Garcia described the division in El Salvador between those military commanders who wanted democracy and those who wanted dictatorship. He emphasized, however, that there was no breakdown of military command in 1979.
Klaus queried him about what he had done before becoming a professor.
Garcia explained that he had been in jail several times for refusing to
serve for the Argentine dictatorship. At one point, the colonel answered
one of Klaus’s questions with a long statement that sooner or later
human rights abusers are “captured by the long arm of justice,”
and that “the end never justifies the means.”
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Margaret Popkin, Salvadoran Criminal Justice System Expert
The day ended with powerful testimony by Margaret Popkin, Executive Director of the Due Process of Law Foundation. Popkin, an attorney and expert on El Salvador, as well as a specialist in justice systems, described to the jury the Salvadoran justice system’s failure to respond to the atrocities committed during El Salvador’s “Dirty War.”
Popkin explained that under Salvadoran law at the time in question, the same security forces accused of human rights abuses were also responsible for investigating crimes, including those abuses committed by their own members. However, the security forces were engaged in a war against so-called “subversives,” and in addition to failing to dedicate resources to fulfill their investigative obligations, they would not investigate their own. When asked how the criminal justice system handled human rights abuses, Popkin answered, “Mainly, they didn’t.” Despite widespread human rights abuses from 1979-1983, not a single member of the armed forces in El Salvador was convicted of a human rights violation during that time. The few cases that were investigated in later years were investigated as a result of tremendous outside pressure, and these cases prosecuted only the lowest level officers.
As Popkin described one stark example of a crime that was eventually prosecuted, jurors became visibly intrigued, some leaning forward in their seats to listen. When General Vides-Casanova was Director-General of the National Guard and General Garcia was Minister of Defense, the second-in-command of the intelligence section of the National Guard ordered the murder of the President of the Agrarian Reform Movement, Jose Rodolfo Viera. Viera was meeting with two U.S. delegates of AIFLD, an international affiliate of the AFL/CIO, in the Sheraton Hotel in San Salvador. Because the two American men, Michael Hammer and Mark Pearlman, were with him at the time of the assassination, they were targeted as well; all three men were murdered at the site. The case became known as “The Sheraton Murders.”
The assassinations, carried out in public with many witnesses, were not initially investigated. After the AFL/CIO began its own investigation and as a result of tremendous pressure from the U.S. Embassy, the Salvadoran authorities began what became a seven-year investigation into the crime. According to Popkin, the investigation dragged over so many years, in part, because the security forces refused to cooperate. Eventually, the men who carried out the shooting of Viera and the two American consultants were tried and convicted. The officers who masterminded the murder were never brought to justice. Popkin emphasized that the conviction, seven years after the assassinations, was the exception to the rule of impunity. The case took so long, she explained, because of obstruction, lack of cooperation, and cover-ups. Furthermore, the judge handling the case actively assisted one of the masterminds of the crime in disguising his identity so as to confuse a potential eyewitness.
Popkin testified that there was no willingness to investigate these crimes at the time, in particular, by the defendants as the Director General of the National Guard and the Minister of Defense. She also emphasized that the killings were not an isolated event. Finally, she explained that it would have been very difficult, if not impossible, for victims of human rights abuses to obtain documentation about their cases or to secure witnesses willing to testify because of their fears for their own safety.
Under cross-examination, Popkin would not answer questions about death
squad activity on the basis that it was beyond the scope of her expertise.
Klaus pointed out an area of the Truth Commission report which criticized
the United States for allowing Salvadoran citizens to finance and run
death squads from their homes in Florida. Popkin did confirm that the
United States tolerated these exiles. When asked about the divisions in
the military mentioned by Professor Garcia, Popkin maintained that the
divisions in the military were not the cause of the failure to prosecute.
Rather, she
emphasized the hesitancy of the security forces to investigate their colleagues.
In the relatively brief cross-examination, Klaus also asked Popkin whether
she was working on the “illegal detentions in the United States,”
to which she answered that her organization was not investigating any
unlawful detentions as it is not the nature of their work. On redirect,
Popkin stated that the Truth Commission had concluded that a death squad
was being run out of the National Guard’s intelligence section. When
asked whether the involvement or lack of involvement by non-military personnel
in perpetrating abuses would affect her opinions about the National Guard’s
responsibility for carrying out an investigation of abuses, she answered,
“Not at all.” No other agency should or could have been investigating
human rights abuses, Popkin said, and the military failed to bring perpetrators
of abuses to justice. “Did they carry out their obligations?”
She was asked. “They did not,” she answered.
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Coming Up
On Monday, July 8, 2002, Terry Karl, a Stanford University Latin American
Studies Professor and expert on El Salvador, will testify. Neris Gonzalez,
one of the plaintiffs, will begin her testimony on Monday or Tuesday.
The remaining witness for the plaintiffs is an expert on trauma and its
impact on the plaintiffs. The defendants will begin the presentation of
their case on Wednesday, July 10. Their lawyer estimated that their case
would take approximately three and a half days.
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