Romagoza et. al. v. Garica and Vides Casanova
July 18, 2002
FREQUENTLY ASKED QUESTIONS
Who are the plaintiffs?
Who are the two defendants?
How many people were killed in San Salvador during the
civil war?
Do you allege that the generals directly committed torture
and other atrocities?
What is the legal basis of the suit?
How does the Romagoza trial relate to the Churchwomen's
trial in October-November, 2000?
What do the plaintiffs hope to achieve with this case?
What does CJA hope to achieve with this case?
Why wasn't the case filed in El Salvador?
Is CJA confident about the outcome?
What is CJA?
Who is on the legal team?
How did the defendants enter the U.S. to begin with?
If the generals are found liable, can they be deported?
Can you give examples of other, similar trials?
Have plaintiffs been able to collect on their judgments?
How does CJA find cases to file?
Why a civil suit? Why not a criminal prosecution?
Who are the plaintiffs?
The plaintiffs are three Salvadorans, all of whom now live in the United
States:
-- Dr. Juan Romagoza, a doctor who was abducted, detained and tortured
by the Salvadoran National Guard in late 1980 in the Guard's National
Headquarters, and who now is a U.S. citizen;
-- Neris Gonzalez, a Church layworker who was abducted, detained,
tortured and raped by National Guardsmen in late 1979; and
-- Carlos Mauricio, a professor at the University of El Salvador
who was taken from his classroom, detained and tortured by the Salvadoran
National Police in their National Headquarters in 1983.
The plaintiffs are extraordinary individuals. Despite the fact that their
lives were ripped apart when they were in their 20s and 30s, they have
continued their lives of service to others here in the United States:
·-- Dr. Romagoza directs a community health care clinic,
-- Mr. Mauricio is a high school science teacher, and
-- Ms. Gonzalez directs an environmental organization.
Who are the two defendants?
Both are retired Salvadoran generals, now living in southern Florida:
-- José Guillermo Garcia was Minister of Defense from 1979-1983,
and
-- Carlos Eugenio Vides Casanova was the Director-General of the
Salvadoran National Guard from 1979-1983 who then became Minister of Defense.
How many people were killed in San Salvador during the civil war?
Salvador's civil war lasted from 1979 until 1992 when the U.N. brokered
a peace agreement. It is estimated that 75,000 civilians were killed during
that period, and that tens of thousands were tortured.
Do you allege that the generals directly committed torture and other
atrocities?
NO. The generals' liability in this case hinges on proof of their responsibility
as commanders for abuses committed by forces under their command. Under
the internationally recognized doctrine of "command responsibility,"
a military commander may be held responsible for abuses by subordinates
if the commander knew, or should have known, about the abuses, and failed
to take all reasonable measures to prevent the abuses or punish the offenders.
This principal was adopted by the United States Supreme Court in the World
War II era case Yamashita v. Styer (1946), which upheld the conviction
of a Japanese commander for abuses committed by troops under his authority.
What is the legal basis of the suit?
The Alien Tort Claims Act, adopted in 1789, gives survivors of egregious
human rights abuses, wherever committed, the right to sue persons responsible
for the abuses in U.S. Federal court. Since 1980, the law has been used
successfully in cases involving torture (including rape), extrajudicial
killing, crimes against humanity, war crimes and prolonged arbitrary detention.
The Torture Victim Protection Act, passed in 1991 and signed into law
by President Bush in 1992, gives similar rights to U.S. citizens and non-citizens
alike to bring claims for torture and extrajudicial killing committed
in foreign countries. Under both laws, the perpetrator must be physically
served with the lawsuit in the United States in order for the court to
have jurisdiction.
How does the Romagoza trial relate to the Churchwomen's trial in October-November,
2000?
The Romagoza trial is the second against the two generals for abuses during
that country's civil war. The first, tried before a Florida jury in fall
2000, was brought on behalf of the families of four American Catholic
missionaries who were raped and murdered by members of the Salvadoran
National Guard in 1980. Following a three week trial, jurors found that
the generals were not legally responsible for these atrocities because
they did not have control over the guardsmen who committed the atrocities.
Although the cases involve the same defendants, and both allege that the
generals have responsibility as commanders for abuses committed by forces
under their command, the cases differ in several important aspects:
-- First, in the present case, the plaintiffs survived their torture
and therefore are alive to testify directly against the generals.
-- Second, our clients are Salvadorans - a doctor, a professor
and a church layworker - who reflect the diversity of civilians victimized
by the security forces.
-- Third, our clients were tortured in offices of the National
Guard and National Police, whereas the churchwomen were killed in a remote
rural area. Accordingly, the evidence in our case that the guardsmen and
police who tortured our clients were under the control of the defendants
is stronger.
The fact that a jury did not find the evidence presented in the previous
case to be sufficient to establish command responsibility is no bar to
this suit. Because the cases are factually different, the previous verdict
has no legal impact on this trial.
What do the plaintiffs hope to achieve with this case?
The plaintiffs are seeking justice, first and foremost. They seek official
acknowledgement by a court of law that defendants Vides Casanova and Garcia
were responsible for the abuses committed against them. They hope to prevent
the defendants from enjoying safe haven in the United States.
The plaintiffs will ask for punitive damages in order to deter other military
commanders from failing to take action when their subordinates commit
atrocities and also to ensure that the generals forfeit any assets they
may be holding over which the court can get jurisdiction.
They want to expose what the defendants have done to the American public.
They want to send the message that the abuses for which the generals are
responsible were so heinous as to be punishable as violations of international
as well as U.S. law.
The plaintiffs 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 cannot talk about the terrible things
that were done to them or that they witnessed because the pain of remembering
is too great, or because they fear retaliation against them or their family
members who still live in El Salvador.
What does CJA hope to achieve with this case?
CJA and our clients hope that this lawsuit will deter other would-be torturers
from committing such acts. This case and similar cases are sending a message
to military commanders around the world that they can be held responsible
for their failure to act, as well as for their direct actions, and that
the U.S. is not a safe haven for such people.
Why wasn't the case filed in El Salvador?
A 1993 amnesty law prevents the generals from being sued in El Salvador.
The Inter American Commission on Human Rights has criticized the amnesty
law for providing blanket immunity from both civil and criminal suits.
Is CJA confident about the outcome?
Command responsibility is always difficult to prove. However, we firmly
believe that we will be able to establish all of the necessary; namely,
that the police and national guardsmen who committed the torture were
subordinates of the two generals; the generals knew of the pattern and
practice of torture committed by their subordinates; and they did not
take the necessary steps to prevent the torture or punish the torturers.
What is CJA?
The Center for Justice and Accountability is a non-profit international
human rights organization based in San Francisco that works to hold human
rights abusers accountable. Among other activities, CJA brings civil lawsuits
in U.S. courts against human rights violators who live, visit or keep
assets in the U.S. CJA was founded in 1998 with initial support from Amnesty
International USA and the United Nations Voluntary Fund for the Victims
of Torture. CJA is now completely independent of Amnesty International
USA although both organizations continue to cooperate on a number of projects.
CJA receives substantial pro bono support from law firms, lawyers, professors
and private investigators around the country.
Who is on the legal team?
All members of the legal team are representing the plaintiffs without
charge. The San Francisco-based law firm of Morrison & Foerster
has had primary responsibility for the legal case from the start. The
Morrison & Foerster team consists of partner Peter Stern and
associate Beth van Schaack. James Green, a civil rights
lawyer based in West Palm Beach, serves as local counsel and co-lead counsel.
Professor Carolyn Patty Blum, Director of the International Human
Rights Clinic at the University of California, Boalt Hall Law School in
Berkeley, provides expertise on international law.
How did the defendants enter the U.S. to begin
with?
We know that both Vides Casanova and Garcia entered the U.S. and have
been living in southern Florida since 1989. Garcia, 68, and Vides Casanova,
63, came to Florida to retire and were granted U.S. residency because
they had never been convicted of a crime. Garcia reportedly received political
asylum and Vides Casanova was granted lawful permanent residence.
If the generals are found liable, can they
be deported?
Neither general has committed any crimes or violations of their immigration
status in the U.S., to our knowledge. However, it is possible that Gen.
Garcia made false statements in completing his application for asylum.
In order to obtain asylum, applicants generally are asked to swear that
they never participated in the persecution of others. "Participated
in" may encompass command responsibility. Accordingly, if Garcia
swore that he had not participated in the persecution of others, then
the INS could launch an investigation into whether he had made false statements
on his asylum application. If so, his status could be revoked and he could
be prosecuted or deported or both.
General Vides Casanova, in contrast, obtained his lawful permanent residency
status based upon claims not related to asylum. As far as we know, he
was never asked whether he had participated in the persecution of others.
Accordingly, we do not know of any grounds on which he could be deported.
The fact that Gen. Vides Casanova may not be deportable underscores the
need for legislation that would require every immigrant who applies for
entry into the U.S. to be asked whether he or she ever participated in
the persecution of others, and both the terms "persecution of others"
and "participated in" must be clearly defined. While we expect
that all applicants would answer the question in the negative, if and
when it is later discovered that the immigrant did participate in the
persecution of others, he or she could then be prosecuted or deported
for making false statements. Senators Leahy, Hatch and Feingold and Congressmen
Foley and Ackerman have introduced such legislation, which CJA supports.
Can you give examples of other, similar trials?
The first case brought in modern times was Filartiga v. Peña-Irala.
In 1976, the family of a young man who had been killed in Paraguay in
police custody saw the police chief walking the streets of Manhattan.
They called the INS which arrested him for overstaying his visitor's visa.
The family sued him, and in 1980, the U.S. court in New York upheld their
claims, opening the way for other claims using the Alien Tort Claims Act
to be brought.
One of the most publicized cases in recent years was the case against
former Philippines President Ferdinand Marcos. After he was voted out
of power, he found safe haven in Hawaii. Eventually, a U.S. court ordered
his estate to pay nearly $2 billion to his victims.
In April of this year, CJA won a multi-million dollar verdict against a Bosnian Serb soldier, who had moved to Atlanta, Georgia, for torture and other abuses against four Bosnian Muslims in Bosnia. CJA, together with two other human rights groups, won a similarly substantial judgment against an Indonesian general for atrocities committed by soldiers and paramilitaries under his command in East Timor following the independence referendum in 1999. Information about these cases, including the complaints and judgments, can be found on CJA's website: www.cja.org.
Have plaintiffs been able to collect on their
judgments?
There have been few efforts to collect damages because most of the defendants
in these cases have either been visitors who did not keep assets in the
United States, or individuals who lived in the U.S. but who did not have
many assets. CJA intends to devote its efforts to making sure that the
generals are required to pay any judgment against them.
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 torture 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. Victims are often reluctant to come forward because they were
so traumatized that they still find it difficult to discuss their ordeals,
and they are often scared about potential repercussions for themselves
or for family members who remain in their country of origin.
Along with this El Salvador case, CJA has filed cases on behalf of plaintiffs from East Timor, Chile, Bosnia, China, and Honduras.
Why a civil suit? Why not a criminal prosecution?
Only the U.S. Department of Justice (DOJ) has the authority to initiate
criminal prosecutions for certain grave human rights abuses like torture,
genocide, war crimes, and terrorism. The DOJ does not believe that it
has the authority to bring criminal charges in this case. The U.S. law
that gives jurisdiction to U.S. courts to hear criminal cases of torture
wherever committed only entered into force in November 1994. The DOJ maintains,
therefore, that it can only prosecute criminal acts committed after November
1994. The plaintiffs' claims against defendants Carlos Eugenio Vides Casanova
and Jose Guillermo Garcia concern torture committed between 1979 and 1983.
To date, the DOJ has not brought any criminal prosecutions of torturers
under the 1994 law. The DOJ tried to bring its first prosecution 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 fter the State Department gave its opinion - which
was widely criticized - that the Peruvian had diplomatic immunity.
The Center for Justice & Accountability
870 Market Street, Suite 684
San Francisco, CA 94102
center4justice@cja.org
Tel) 415-544-0444
