July 8th and 9th, 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, law student, Boalt Hall Law School, University of California, Berkeley.

Trial Update, Days 7 and 8 - Testimony of Terry Karl

On Monday July 8 and Tuesday July 9 the jury heard the detailed testimony and cross-examination of Terry Karl, Professor of Political Science and former Director of the Latin American Studies Program at Stanford University. Professor Karl obtained her Ph.D. at Stanford and taught at Harvard University. As an expert on El Salvador, she advised members of Congress throughout the Salvadoran conflict and led high level delegations to the country. She interviewed dozens of individuals from all sectors of Salvadoran society, including members of the military, for her extensive research on Latin American military structures. She was also a consultant to the UN Secretary General’s office for the U.N.-brokered 1992 Peace Agreement between the Salvadoran government and the FMLN, the Salvadoran guerrilla organization.

Professor Karl described her personal witnessing of state violence in El Salvador. For example, at times, she accompanied the staff of the Legal Aid Office of the Archbishop when they would search for the bodies of the disappeared. First, they would go to the city morgue to look for bodies, at times piled up outside the front door. Then, they searched the streets looking for bodies, mostly in the poorer neighborhoods. They took photographs of the bodies and put them in large books along with other identifying information so that family members could try to identify their missing loved ones. At times, Karl was present when someone identified a friend or family member while looking through the book of photographs.

Professor Karl explained to the jury that the human rights violations committed in El Salvador by the Armed Forces were among the highest in the world and second highest in Latin America. “I think you will see from my testimony,” she told the jury, “that the evidence is overwhelming” of massive repression by the military forces. As a political scientist, she explained, she studies power. When General Garcia was Minister of Defense, she described, he was probably the most powerful person in El Salvador. Therefore, he had the power to curb the human rights abuses being committed by the forces subordinate to him. Professor Karl opined that he did not take even “the most minimum reasonable actions” to prevent human rights abuses or to punish those officers known to be committing the abuses. When the two generals were successive Ministers of Defense, she told the jury, not one single officer was ever prosecuted for a human rights violation.

Karl then explained the background to the conflict in El Salvador. Two factors were the most important to consider. First, she explained the extreme levels of poverty and inequality in El Salvador, a country where three-quarters of the children were malnourished, the leading cause of death was diarrhea, and 10 percent of the population controlled 80 percent of the resources. But inequality alone was not the only cause of the conflict, she explained. Other countries had similar poverty indices but
did not break into war.

In El Salvador, she explained, all peaceful means to pursue social changes had been cut off by successive military dictatorships. Beginning in 1932 with the massacre of between 10 and 30,000 peasants (“La Matanza”), after a few hundred had gathered to call for land reform, dictatorships reacted violently when the Salvadoran populations sought to organize themselves into political parties, trade unions, or religious communities. There was little opposition until the late 1960s and early 1970s, when a political coalition, which included the Christian Democrats participated in the 1972 elections. The military refused to allow the winning candidate, Napolean Duarte, to
take office. He was beaten and forced into exile. Professor Karl also defined the nature of military dictatorship, where the military has all real power instead of any civilians who might possess titular power. She also described the intimate relationship between the economic elite and the ruling military power, which she described as a “partnership.”

In 1977, internal debate occurred in the military about how to respond to a growing peaceful opposition to military rule. She described the two groups as the “hardliners” who wanted to use violence to curb political opposition, and the “reformers” who sought a transition to a more democratic state. When Garcia was appointed Minister of Defense by the new military junta in 1979, he began to move reform advocates into weaker positions and hardliners into more powerful ones. A U.S. intelligence cable of the period showed to the jury described Garcia as “the power behind the throne.”

Professor Karl then described a “scale of terror” developed by Freedom House, a bipartisan think tank funded largely by the U.S. Congress. She focused on three levels in particular: mass state terror, targeted state terror, and highly targeted state terror. In a period of mass state terror, torture, murder, and disappearances threaten the entire population, while targeted state terror targets certain groups and highly targeted terror
targets visible group leaders. Karl then showed the jury a timeline of 1979-1983, in which the defendants were successive Ministers of Defense in El Salvador, as a period of the mass state terror. An estimated thirty thousand unarmed civilians were killed from 1979-1982 alone by members of the armed forces and the security forces. Many were killed in large-scale massacres. In 1980 and 1981, an average of 1,000 people were killed each month. During this same time period, Archbishop Romero was assassinated after having given a homily in which he urged those who were given orders to kill to put down their rifles. “I beseech you,” he said, “in the name of God, stop the repression.”

The patterns of violence also indicated clearly that it was not random, as similar tactics were used in different incidents throughout the country, and the massacres could not have been carried out without logistical support and coordination. The same types of torture were also noted in different parts of the country. Furthermore, often bodies would be left with symbols to send a message to the population, such as dirt stuffed into the mouths of those who urged for land reform. The massacres were part of a military strategy, she explained, aimed at “draining the sea,” or killing any civilian who might be perceived as providing support for the guerrillas. To explain why the levels of terror dropped after 1983, Karl provided two possible hypotheses. One was that “terror works.” According to Karl, people were much more reluctant after such intense violence to participate in any kind of associational activity. Two, a series of visits from high-level U.S. officials, including former Secretary of State Schultz and former Vice-President George Bush, delivered what Karl described as a “drumbeat” of messages indicating that if human rights abuses by the military and security forces in El Salvador continued, U.S. aid would be terminated. The fact that abuses were reduced at that time, opined Karl, meant that Salvadoran officials had the capacity to do so even without U.S. pressure.

Professor Karl reviewed Secretary of Schultz’s talking points for his trip to El Salvador, prepared by then-Undersecretary of State for Latin American Affairs, Tony Motley. Among other issues, the talking points also highlighted the need to arrest those involved in the Sheraton murders, particularly a Captain Avila, who was known to be frequently in San Salvador and staying at a safe house that was adjacent to the National Guard Headquarters. Plaintiff’s lawyer Peter Stern then directed Professor Karl’s and the jury’s attention to excerpts of former Ambassador Edwin Corr’s deposition which confirmed many of Karl’s assessments. Mr. Corr will be testifying next week for the defense.

One slide prepared by Professor Karl listed the reasons why the defendants should have known about the abuses committed by the forces under their command. The list included the bodies found throughout the country, Salvadoran press reports, and the information provided to them by U.S. officials, international organizations, and Salvadoran groups and leaders. The parallel of what was happening in El Salvador, she told the jury, would be to see dead bodies in downtown West Pam Beach or at a nearby hotel. It was also on television, she explained. One night, while Professor Karl was in a hotel room in San Salvador, the television program she was watching was interrupted, and a “confession” was televised on a homemade-looking videotape of a man, who looked, beaten confessing to being a communist. Two other “confessions” followed. The next day, all were found dead, badly tortured and mutilated, and Karl saw the bodies. “These types of human rights abuses were visible, they were in the newspapers, they were on television,” she said.

On Tuesday, Professor Karl’s testimony focused on a year-end memo written by former-Ambassador Corr in 1988, in which he describes his concern at growing human rights abuses. In the memo, under the title “Code of Silence,” Corr talks about the fear that members of the military and security forces have of pulling the “skeletons” out of the closet, stopping any one from denouncing other military officers regarding human rights abuses or corruption. Professor Karl earlier had described the “tanda” system in which a group of boys entered the military academy together. Those who graduated from the rigorous program (approximately 20-40 men) became like a “brotherhood” whose ties to each other were stronger even than family, as they were promoted as a group up the chain of command.

Corr’s memo also discusses what Karl had described earlier as “deniability,” a phenomenon in which the military forces denied involvement in human rights abuses, tried to diminish the gravity of what was reported if there was evidence that abuses occurred, and made only false promises to investigate and/or blocked any outside attempts to investigate. One example of this obstruction was when an investigating judge requested the names of all the men who were on duty in the area where a notorious killing had taken place. Witnesses had identified members of the National Guard and the military as responsible, one with the name of “Tony.” Vides Casanova gave the judge a list of 450 names, including 50 whose first name was Antonio.

Had Vides Casanova, the Minister of Defense at the time the memo was written, responded to the reported abuses, Karl testified, it would have made a difference. As it was, the signal sent to officers was that “they would be protected no matter what they do.” She defined “impunity” as precisely this situation in El Salvador – military and security forces acting without fear of punishment. In fact, Professor Karl explained, human rights abusers were rewarded and promoted to positions of greater power. She
described in detail the promotions that had been given from 1979-83. The abuses, she explained, would not have been possible without the support of the Minister of Defense. She emphasized, as other witnesses have, that no one was ever prosecuted for a human rights violation when the defendants had command responsibility over the military and security forces.

Even mass violence with substantial evidence was denied, she explained, giving the El Mozote massacre as one example. Karl read the details of the massacre to the jury from the Truth Commission report. In that massacre, the Atlactl Army Battalion brutally exterminated an entire village of hundreds of men, women, and children and subsequently burned the bodies. The massacre was widely reported in the U.S. press. After the massacre at El Mozote and another killing a group of 17 people in El Salvador, then-U.S. Ambassador Hinton wrote in a cable which Karl read to the jury: “While [Minister of Defense] Garcia talks a good game, I no longer trust him or believe him.” Another cable from Ambassador Hinton quoted Garcia as he called the El Mozote massacre a “novela” and “pure Marxist propaganda devoid of foundation.” The Truth Commission report described the evidence of the massacre and Garcia’s denials that it had ever occurred. “If it were not for the skeletons of the children,” Professor Karl said, “some people would still be disputing whether a massacre took place.”

In closing her direct testimony, Professor Karl laid out many of the ways that the defendants could have prevented the grave human rights abuses that occurred under their commands. The list included: a demand for immediate reports of all civilian deaths and detentions (to reduce the risk of torture); clear written instructions that officers who committed abuses would be removed so that commanders would known their careers were on the line; inspection of the sites of alleged abuses; the investigation of commanders under whom abuses were reported; the protection of witnesses of grave abuses; and the prosecution of abusers. After each missed opportunity, Stern would ask whether Karl believed that the defendants had the practical ability to take these measures. She always replied, “Yes.” Stern then asked her the cumulative effect of Garcia’s and Vides Casanova’s failure to take any of these actions. “In my opinion,” she stated, looking directly at the defendants, “ because of that thousands and thousands of
people died who did not have to die, and thousands and thousands of people were tortured who did not have to be tortured.”

Cross Examination:

Kurt Klaus’ cross-examination lasted much of the afternoon. His initial focus was on the issue of transitions to democracy and whether El Salvador was in a transition to democracy during the period from 1979 to the 1990s. Professor Karl made clear that the Salvadoran transition did not really begin until the 1992 peace agreements. She stated that a true transition could not occur until the security forces were disbanded and the military was purged of human rights abusers, pursuant to the peace accords. She emphasized that, while elections have occurred throughout Salvadoran history, they were problematic prior to 1994 since a range of political parties could not safely participate.

Professor Karl explained that political parties had to reveal their lists of supporters and that this was unthinkable in the climate of repression that pervaded El Salvador. Next, When Klaus pressed Professor Karl on the impact of the Cold War on the region, Professor Karl illuminated the complexities of the U.S. role in Nicaragua from 1978 onward.

Klaus then inquired about the significance of the October 15, 1979 coup by junior military officers in response to growing repression under General Romero. Professor Karl pointed out that both reformers and hardliners in the military assumed that the military would remain autonomous from civilian control. Klaus had Professor Karl read the Proclamation of the junior officers which set forth their program of agrarian reform, the end to human rights abuses and corruption. While Klaus and Karl sparred over Karl’s conclusion that El Salvador had one of the most extreme disparities of wealth in Latin America, Professor Karl made it clear that the military remained firmly in control of the new Revolutionary Junta. Despite the presence of civilians in the government, Karl stressed again that they “served at the pleasure of the military.” She also said that the military faction that led the coup, under the leadership of Colonel Majano and pushed
for reforms was eventually totally marginalized and then removed by defendant Garcia.

Klaus returned to a document in evidence written by Ambassador Robert White. Professor Karl pointed out a pattern common to all U.S. ambassadors in this period in which they all arrive in El Salvador optimistic about the U.S. ability to influence events there. However, as was evident from cables sent from each of the U.S. ambassadors, they all leave confronted with a very different reality. In that context, Karl emphasized that White’s early assessment was overly optimistic. Further, while Karl agreed that the main players in El Salvador were mostly as White had described, she also emphasized that the “right wing extremists” that White described as key were being directed from inside the Salvadoran security forces. Klaus tried to press Karl on the amount of U.S. aid to the country. Karl made clear that military aid did rise after President Reagan took office in 1981, but also that the Salvadorans clearly had trucks, communications equipment, and other material from the U.S. which enabled command and control of troops in the field.

Karl readily admitted that she had never interviewed Garcia in her many trips to El Salvador to support her research. She said she tried hard to get an interview with him; receiving a welcome laugh from the jury she stated that she “apparently didn’t ask for the right person.” In referring to her extensive testimony of the “tanda” system of the Salvadoran military, she stated that one instance in which the tanda did not act as a protector for its members was the treatment of Majano and the other reformers who were all forced out of the military. Majano had to flee El Salvador after two assassination attempts against him and his family.

Klaus next turned to the role of Major Roberto D’Aubuisson. Professor Karl was quite familiar with him as she had traveled with him during his political campaign in El Salvador. He was involved in death squad activity in the early 1980s, and Professor Karl stated, is believed to have been the mastermind behind the assassination of Archbishop Romero. An extensive examination focused on Majano’s arrest of D’Aubuisson and 23 of his cohorts, all main death squad and security force members in a farmhouse on the Finca San Luis in May 1980. The house contained arms, supplies, false license plates, ski masks, lists of backers and other equipment generally used by the death squads. Majano was still laboring under the assumption that if he could catch military officers with damning evidence of extra-judicial killings and illegal operations that he would have the support of other military commanders “to could cut off the head of the apparatus that was operating primarily out of the security forces and military.” When Col. Majano arrested them, put them in jail and elicited testimony and confessions from some of them as to their involvement in human rights abuses, defendant Garcia released D’Abuisson and the other officers and changed Majano’s military position to force him out.

Klaus next asked about the role of the guerrillas in El Salvador. He asked Professor Karl “if the guerrillas acted with impunity.” Professor Karl noted that the term impunity “refers to state officials becoming the murderers. In other words, the organizations “that are supposed to protect you are killing you.” Professor Karl emphasized that the security forces are supposed to serve and protect, and impunity exists when “the law breaks
the law.” She did say that guerrillas also acted outside the scope of the law, especially as they grew and controlled territory. Some guerrilla groups engaged in kidnappings to finance their operations or targeted assassinations. She noted that the guerrillas so-called final offensive in 1981 was neither final nor really an offensive. She then recounted the evolution of the FMLN as a unified armed command. She even noted that the FMLN received some of its weapons from corrupt Salvadoran military who sold arms to them.

In testimony that recalled the U.S.’ unsuccessful strategy in Vietnam, Professor Karl said that U.S. diplomats encouraged the Salvadoran military to engage in “winning the hearts and minds” of the civilian population. They understood that the military had to halt the high level of state terror. Karl stressed her belief that it would have been possible to
prosecute and purge human rights abusers from the military. Without this, however, the war for the “hearts and minds” of the people would ultimately be unsuccessful. In extraordinarily moving testimony, Professor Karl described her interviews with young members of the guerrillas during a trip to El Salvador. As she fluidly moved between Spanish and English, she told the jury how she asked each young man why they were with the guerrilla. None spoke of Marxist-Leninist theory, but each stated: “they killed my
mother;” “they killed my father;” “they killed my grandmother;” “they killed my brother.”

Redirect:

On redirect, Professor Karl emphasized that a country cannot make the transition to democracy without the rule of law. The ideals of the October 1979 were never fulfilled, and the defendants’ actions were clearly inconsistent with those ideas as they failed to ensure that “the people with guns are the law abiders.” She stated that the “single most important thing to do to democratize El Salvador was to lower the level of repression,
and the single greatest violators were inside the security forces.” Stern solicited testimony regarding the fact that it would have been relatively easy for the defendants to find out what their officers were doing. Professor Karl emphasized that were only 16 field officers in the National Guard when Vides Casanova was Director General. In conclusion, she stated that no one was more powerful in the military than the defendants when they were the respective Ministers of Defense. Furthermore, U.S. Embassy officials clearly viewed the Minister of Defense as the person to seek out to discuss persistent human rights abuses.

At the end of testimony, Judge Hurley admonished the jurors to disregard their “natural tendency” to draw conclusions as they are listening to testimony and to suspend judgment until they have heard all the evidence.

After the jury left, Judge Hurley continued a discussion of the command responsibility jury instruction. The complexities of the subject became apparent to the parties as well as the judge as a discussion lasting over an hour left many questions of precise language still unresolved.

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