1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA HON. OLIVER W. WANGER J. DOE, ) No. CIV-F-03-6249 OWW ) Plaintiff, ) Plaintiff's Application for ) Judgment by Default vs. ) ) ALVARO RAFAEL SARAVIA; and ) DOES 1-10, inclusive, ) ) Defendants. ) ) Fresno, California Tuesday, August 24, 2004 REPORTER'S TRANSCRIPT OF PROCEEDINGS Vol. 1, pgs. 1 to 181, inclusive REPORTED BY: PEGGY J. CRAWFORD, RMR-CRR, Official Reporter 2 APPEARANCES OF COUNSEL: For the Plaintiff: HELLER EHRMAN WHITE & MCAULIFFE LLP 333 Bush Street San Francisco, CA 94104-2878 BY: NICHOLAS W. van AELSTYN RUSSELL P. COHEN CENTER FOR JUSTICE & ACCOUNTABILITY 870 Market Street, Ste. 684 San Francisco, CA 94102 BY: MATTHEW J. EISENBRANDT CAROLYN PATTY BLUM Also Present: ALMUNDENA BERNABEU 3 INDEX PLAINTIFF'S WITNESSES: WILLIAM L. WIPFLER 37 DIRECT EXAMINATION BY MR. Van AELSTYN 37 AMADO GARAY 89 DIRECT EXAMINATION BY MR. Van AELSTYN 89 THOMAS GUMBLETON 147 DIRECT EXAMINATION BY MR. COHEN 147 AMBASSADOR ROBERT WHITE BY DEPOSITION 173 ***** EXHIBITS ***** PLAINTIFF'S Received 2, 4, 11, 12, 13, 16, 17, 18, 19, 20, 24, 25, 48 27, 28, 30, 33, 42, 51, 52, 58, 57, 60, 73, 74, 75, 77, 87, 88, 100 and 101 92, 93 and 68 75 219 86 107, 108, 109, 43 and 44 132 112 170 ***** 4 1 Tuesday, August 24, 2004 Fresno, California 2 9:00 a.m. 3 THE Court: Good morning. 4 THE COURT: Matter before the Court is Civil-F 5 03-6249, J. Doe versus Alvaro Rafael Saravia, motion for 6 default judgment. 7 MR. Van AELSTYN: Good morning, your Honor. May it 8 please the Court, my name is Nico van Aelstyn. I'm an 9 attorney with the law firm, Heller Erhman White & McAuliffe. 10 We represent the Plaintiff, J. Doe. With me this morning are 11 my colleagues, Russell Cohen -- 12 MR. COHEN: Good morning. 13 MR. Van AELSTYN: Matthew Eisenbrandt, Center for 14 Justice and Accountability, and Almundena Bernabeu. 15 THE COURT: Good morning. 16 MR. Van AELSTYN: There are a couple of housekeeping 17 items we would like to address before getting into the 18 proceeding today. 19 First, with regard to exhibits, you will see on the 20 stand there, there are three binders of exhibits. We have 21 already prepared them with tabs. We did not submit them for 22 admissibility today. We will be offering them into evidence 23 with prospective witnesses, which we thought for the ease of 24 the matter, we would put them into the binders first. 25 Is that all right, your Honor? 5 1 THE COURT: Yes, we can proceed that way. What I 2 would ask is that, for foundational purposes, if a -- an 3 exhibit is self-authenticating or it is certified an official 4 record, then we can use the exhibit itself. Otherwise, I 5 would like for you to offer the foundation for the exhibit so 6 that it complies with the Federal Rules of Evidence. 7 MR. Van AELSTYN: Not a problem, your Honor. We will 8 do that. If it's all right, we do want to use some of them as 9 demonstrative before we get to the actual witnesses who will 10 provide that foundation. 11 THE COURT: Since there is no jury here and no 12 opponent, I will permit you to do that. Otherwise, it would 13 have to be in evidence, if we had a jury here, before it could 14 be exhibited. 15 MR. Van AELSTYN: I understand, your Honor. It is an 16 unusual proceeding, without a jury or an adversary. 17 THE COURT: Right. 18 MR. Van AELSTYN: In light of that, it brings me to 19 the other housekeeping matter that I have that I wanted to 20 raise with you. Again, in recognition of the unusual nature 21 of the proceeding, the normal custom, of course, is that 22 witnesses are excluded from the courtroom until they offer 23 their own testimony. 24 And we would like to request, if it's all right with 25 your Honor, to have some of the witnesses be here. Many have 6 1 traveled far in order to be here, and they would like to hear 2 the testimony of others. Because of the nature of the 3 proceeding, I don't think the testimony of one witness would 4 affect that of another. 5 THE COURT: The normal rule that underlies, and the 6 purpose of sequestration of witnesses, is to prevent the 7 influencing of one witness by another's testimony. 8 If you represent that issues of credibility are not 9 implicated by the various witnesses' testimony and that there 10 shouldn't be any spillover or influence, then, since nobody is 11 making a request under the Federal Rules of Evidence for a 12 sequestration order, we simply won't issue one. 13 MR. Van AELSTYN: Thank you, your Honor. We 14 appreciate that. And I do make that representation, your 15 Honor. If there is any question in your mind or my mind, we 16 will sequester a particular witness, but I don't believe there 17 are any that would raise that issue. 18 Just to tell you what we plan to do this morning and 19 today, actually, I would provide an opening statement this 20 morning, and then we will have three witnesses today. The 21 Reverend Canon William L. Wipfler will testify first. Bishop 22 Thomas Gumbleton will testify following the Reverend Wipfler, 23 and in the afternoon, we expect the testimony of Amado Antonio 24 Garay. If his testimony should conclude before the day 25 concludes, we do have another witness that is prepared to 7 1 testify today, but we are not sure how long it will go. 2 THE COURT: I had some preliminary questions that I 3 wanted to direct to you and this, I hope, will be helpful to 4 the proceedings, because the legal posture in which we 5 encounter the case, I think, at least requires that we confirm 6 that the procedure of requesting the Clerk's default was 7 followed in accordance with the requirements of the Federal 8 Rules of Civil Procedure. And the proof of service that was 9 filed with the Court January 9th of 2004, I want to ask you 10 about shortly. 11 The request to enter default that was filed April the 12 12th of 2004, does recount the service of the summons and the 13 complaint by substituted service and by the evidence that was 14 submitted with that. 15 And I want to note that the Clerk's entry of default 16 is of record, filed April 13th, 2004. And so that we are all 17 understanding the same thing and that we all recognize the 18 nature of that proceeding, that default was entered by the 19 Clerk of the Court and it was not reviewed before its entry by 20 the assigned judge. 21 And I want to confirm with you, Mr. Van Aelstyn, that 22 in the proof of service, as I understand it, and I'm referring 23 to the declaration of Mary Beth Kaufman in support of the 24 service, it is stated under oath that the Center for Justice & 25 Accountability, which is an institute that is located in San 8 1 Francisco, California, had done background investigation to 2 locate the defendant, and he is named Alvaro Rafael Saravia in 3 the complaint. That is his name as a defendant. Although, at 4 least one report that is attached involving his presence in 5 Miami earlier in the 1990s uses the name "Saravia," but the 6 name "Moreno" -- and I can't tell whether that's a surname or 7 a given name is used. 8 Do you have any information on that? 9 MR. Van AELSTYN: Yes, your Honor. That is the 10 custom of naming persons in many Latin American countries and 11 Spanish cultures. The first surname -- both the surnames of 12 the mother and father are used. 13 THE COURT: Yes, I'm familiar. 14 MR. Van AELSTYN: Yes. And so Saravia is the surname 15 by which he is customarily known, and yet he does have the 16 second name, which is often omitted because people usually 17 don't use it. Some do, some don't, but usually not. 18 So, in fact, in our complaint, we did include Moreno, 19 but then referred to him throughout as "Mr. Saravia." 20 THE COURT: Thank you. And the Court's understanding 21 from reviewing the declaration is that, as of 2001, there was 22 a report that the defendant was in Miami, resident in Miami, 23 and that there were family members in Miami. 24 In other papers that I have read, there is the 25 report, and in Ms. Kaufman's declaration from the database 9 1 searches, that the defendant then moved to California to 2401 2 Manor Oak Drive, Modesto, and that he, meaning the defendant, 3 was associated with two businesses, ALS Fashions, and if I'm 4 pronouncing it correctly, Aguarius. I don't know if that's 5 intended to be a G or Q, but the printed word is G, Aguarius 6 Enterprises. 7 And the owner, or at least the person in control of 8 the residence appears to be an Ines Olsson, who is also in 9 Ms. Kaufman's declaration, asserted to have some relation, 10 whether wife or significant other, to the defendant. 11 And the understanding that I gained from the 12 declaration is that the defendant conducted businesses, most 13 significantly an auto business, in the Modesto area. One 14 called Modesto Auto Mart and the other called Three Amigos 15 Auto Sales. 16 And what my question is, is to confirm with you and 17 for us to clearly understand, because the Court has an 18 independent duty to inquire into the matter of jurisdiction, 19 and personal jurisdiction is certainly waivable under the 20 Constitution and under the law, but in proceeding by way of 21 default, we want to be certain, at least by a preponderance of 22 the evidence, that this service at the Olsson residence was at 23 a place where the defendant resided by a person who was 24 apparently in charge, and then you can use the state law to 25 follow that with a service of a summons and complaint by mail 10 1 at that place. 2 But I just want to confirm with you the additional 3 evidence that gives you the confidence to know that this was 4 the place of residence of the right Saravia. 5 MR. Van AELSTYN: Yes, your Honor. We have no doubt 6 about that. And I believe there are additional declarations 7 that were provided at the time to explain further the nature 8 of the substitute service that was performed in September and 9 October of 2003, in conformity with state law. 10 There were at least three attempts to serve 11 Mr. Saravia at that address, 2401 Manor Oak Drive, and that 12 the last time, the papers were served with Ms. Ines Olsson. 13 In speaking with the process server, who did submit a 14 separate declaration, as I recall, Ms. Olsson confirmed a 15 couple of things. First, that Mr. Saravia had lived there; 16 second, that she continued to accept mail for him there; and 17 three, she confirmed that he had operated businesses at that 18 address. 19 I believe she also raised some concern about him 20 owing her some money, but that's not relevant for the issues 21 of jurisdiction. 22 Given those factors and her confirmation of his 23 residence there and, most importantly, that she continued to 24 accept mail for him there, and in concert with the separate 25 investigation that the Center for Justice & Accountability 11 1 conducted in the Modesto area and what was told to them by 2 others in the community about Ms. Olsson and Mr. Saravia being 3 recognized in the community as having some kind of 4 relationship with each other, we are quite confident, your 5 Honor, that we did indeed conform with the state law 6 requirements for substitute service and that Mr. Saravia was 7 fully aware of the service of this complaint. 8 THE COURT: Was there any current information then 9 that was developed by your investigators as to the then 10 whereabouts of the defendant? 11 MR. Van AELSTYN: No, your Honor. We could not tell. 12 In addition to Ms. Ines Olsson, there was a second person at 13 the residence who also spoke to the process server, a young 14 man who said that he knew who Mr. Saravia was, but that he had 15 not -- this young man, I believe, was a student -- had not 16 seen Mr. Saravia for some weeks, I guess. I'm not sure. 17 But, no, we did not ascertain the immediate 18 whereabouts of Mr. Saravia. We did confirm to our 19 satisfaction that he had been there not long before and that 20 he continued to have communications and relations with those 21 at that address. 22 THE COURT: And did the owner or the person in 23 control, Ms. Olsson, confirm that Saravia had lived there? 24 MR. Van AELSTYN: Oh, yes, she did. Yes, she did. 25 THE COURT: And let me ask one more question. In 12 1 your investigation, was there any effort made to confirm that 2 the individual in Modesto whom you were seeking to serve is 3 the same Captain Saravia who was at one time a member of the 4 El Salvadoran Armed Forces? 5 MR. Van AELSTYN: Yes, we did, your Honor. We 6 confirmed that in part through the investigation that was also 7 conducted in Miami. The process servers and the private 8 investigators did meet with his relatives in Miami, his 9 ex-wife and his -- at least one of his two children there. 10 And they confirmed that it was indeed the same Alvaro 11 Saravia, who was a captain in the El Salvadoran Air Force and 12 who had left the family in Miami and then went to California. 13 They knew that he lived in Modesto. 14 THE COURT: Do his relatives -- meaning I take it now 15 from your statement that this is a former spouse? 16 MR. Van AELSTYN: No. I actually don't know if they 17 had achieved a divorce, but for all intents and purposes, they 18 lived separate. 19 THE COURT: They lived separate and apart? 20 MR. Van AELSTYN: Yes, your Honor. 21 THE COURT: And, apparently, he has children, and 22 none of these immediate family members reside with him in 23 California? 24 MR. Van AELSTYN: That's correct, your Honor. They 25 all reside in Florida. They all had once resided with him in 13 1 Florida and had not seen him since he had gone to California. 2 THE COURT: I may be getting ahead of myself, but let 3 me understand just chronologically. When the court proceeding 4 in El Salvador that was addressed to the defendant relative to 5 his responsibility for the assassination was convened, I 6 understood, but I didn't get the chronology completely 7 straight, as to whether the defendant was then in the United 8 States and was returned to El Salvador or whether he was not 9 extradited to El Salvador. 10 MR. Van AELSTYN: He was in the United States and in 11 Florida. He had been in the United States since 1985 or '86, 12 but he was in Florida. And the investigating judge in El 13 Salvador in, I believe, December of 1987, issued an 14 extradition request, which was served on the appropriate 15 authorities in the United States. And Mr. Saravia was 16 arrested and detained in the Miami Detention Center. And he 17 was held there for 14 months, pending the extradition request 18 in El Salvador as it worked its way through the courts in El 19 Salvador and as his habeas corpus petition worked its way 20 through the courts, both in El Salvador and in the United 21 States. 22 THE COURT: And then my understanding is due to the 23 reported inconsistency of testimony of the primary witness in 24 that case, the court in El Salvador did not proceed with the 25 criminal case to assign responsibility to the defendant for 14 1 the assassination of the Archbishop. 2 MR. Van AELSTYN: Ultimately, the Salvadoran Supreme 3 Court issued an order that negated the extradition request. 4 They cited a number of things in their order, and you will 5 hear testimony during the course of this proceeding addressing 6 the issue of the -- shall I say, the veracities, supporting 7 nature of the evidence, supporting that determination by the 8 El Salvadoran Supreme Court. 9 THE COURT: And is there a court -- is the Supreme 10 Court in El Salvador like the Supreme Court of New York, a 11 trial court, or is it the court of last resort of highest 12 appeal? 13 MR. Van AELSTYN: The latter, your Honor. It is the 14 court of last appeal in El Salvador. 15 THE COURT: And so the proceeding, the criminal 16 proceeding against the defendant, was in an El Salvadoran 17 trial court? 18 MR. Van AELSTYN: That's right, your Honor. It was 19 in -- it's a little bit different, and you will actually hear 20 testimony from an investigating judge from El Salvador who 21 will describe the nature of proceedings there. Under their 22 civil law system, it is very different than here, of course. 23 THE COURT: All right. I didn't mean to get you off 24 track, but I wanted to confirm with you that we have, at least 25 by a preponderance of the evidence, the right individual and 15 1 that we have valid service to confirm the default that has 2 been entered jurisdictionally, so that what we do here means 3 something. 4 MR. Van AELSTYN: I appreciate that, your Honor. We 5 are seeking a default judgment, which is different from the 6 entry of default by the Clerk, and we appreciate the magnitude 7 of what we are requesting. 8 THE COURT: All right. You indicated that you wished 9 to make an opening statement. I don't know whether you are 10 going to touch on the law, but I think that we probably should 11 discuss the law as we get into the evidence before, though, we 12 start the evidence. 13 MR. Van AELSTYN: I do intend to, your Honor. 14 THE COURT: All right. Then you may proceed. 15 MR. Van AELSTYN: Thank you, your Honor. 16 On the quiet leafy grounds of a hospital for terminal 17 cancer patients in San Salvador, there is a chapel. It is 18 shortly after 6:00 p.m. on March 24, 1980, a warm evening, and 19 the doors to the chapel are open. 20 From outside, you can hear the words of the service, 21 a commemoration of the occasion of the first anniversary of 22 the death of Sarah de Pinto. Monseñor, as he was known then 23 and still known today, the Archbishop of San Salvador, Oscar 24 Arnulfo Romero, was celebrating a mass. 25 Monseñor stands at the alter facing the congregation 16 1 and reciting the holy words that he has so many times before, 2 though, as always, adapting them a little to the circumstances 3 of that service. The bread and the wine are brought forward 4 to the alter. 5 At that moment, a car pulls up in the open drive in 6 front of the chapel. The driver bends forward in his seat to 7 inspect something on the floor of the car. Monseñor lifts the 8 chalice, raising it in his arms over his head in offering. 9 From the back seat of the car, a man with a rifle takes aim 10 and pulls the trigger. 11 The gunshot is deafening. There are screams, panic. 12 Monseñor had been struck in the heart. The car drives slowly 13 away as pandemonium breaks out in the small chapel. 14 (Excerpt of March 24 Homily is played as follows: 15 "This Eucharist is precisely an act of faith. In 16 Christian faith, we know that at this moment, the 17 consecrated bread becomes the body of Christ, who 18 offered himself for the world's redemption and in 19 this chalice, the wine transforms into the blood that 20 became the price of salvation. 21 "Let this immolated body and this blood sacrificed 22 for mankind nourish us and dedicate our bodies and 23 our blood to the suffering and pain just like Christ, 24 who did so not for himself but to offer concepts of 25 justice and peace to his people. 17 1 "Let us unite closely in faith and hope in this 2 moment of prayer for Doña Sarita and ourselves." 3 Monseñor is dead. 4 (Photographs were shown of the shooting scene.) 5 The news travels instantly from this small chapel, 6 through the religious community of San Salvador to a visiting 7 delegation of American church members, to the U.S. Embassy and 8 across the country, to his family, to the plaintiff, and to 9 the world. 10 (News clips were shown.) 11 The immediate impact within El Salvador was great. 12 The U.S. Embassy went on alert and evacuated personnel. One 13 week later, the country came to a standstill for the funeral. 14 The immense crowd included religious and political dignitaries 15 from around the world. 16 This is a view of the plaza from the cathedral, the 17 crowd estimated at some hundred thousand, most unable to get 18 inside. 19 In the almost 25 years since this crime has taken 20 place, what do we know about it? As you can see, there were 21 recordings, pictures, eyewitnesses. The man who drove the 22 assassin to the chapel will testify here this afternoon. 23 From soon after the crime, it was known who did this 24 to Monseñor, those who made the arrangements for the gun, the 25 shooter and the car, the person behind this, those who wanted 18 1 him dead. 2 We know that our defendant, Alvaro Rafael Saravia, 3 was among this group. The evidence will show that Saravia 4 arranged for his personal driver to drive the assassin and 5 that he took the news of the success of the operation to his 6 superior, Major Roberto D'Aubuisson. 7 Saravia has never denied that he was involved. 8 Indeed, he admitted it to representatives of both the U.S. 9 government and the United Nations Truth Commission. Until 10 very recently, this man was living openly in Modesto, just a 11 few miles from here. Now he has run from this case. 12 You will hear from the investigating judge, who was 13 initially given the responsibility of investigating this 14 crime. You will hear how he, this judge, was forced to flee 15 the country just days after his investigation began, when the 16 government-sponsored death squad attacked him in his home. 17 Yet in almost 25 years, not a single person has been 18 held accountable for this crime, not in El Salvador nor 19 anywhere else. In fact, some of those behind this killing 20 rose to the highest positions of power in that country and 21 their influence is still being felt today. 22 This case begins a modest effort to counter impunity 23 with accountability, to clarify history and speak truth, not 24 silence it, and, it is hoped, to achieve some measure of 25 justice in this, one of the worst crimes in the Americas. 19 1 That it comes in a U.S. courtroom is dispiriting in 2 what it says about the Salvadoran legal system, and at the 3 same time, a beacon of hope, solidly grounded in U.S. law, one 4 that was supported by a landmark decision of the United States 5 Supreme Court just this last term. 6 Who was Monseñor? The magnitude of this crime and 7 its impact on the plaintiff, on El Salvador, on the hundreds 8 of thousands of Salvadorans that have been disbursed from that 9 small country, including many here to Fresno, as well as its 10 impact on millions more around the world cannot be grasped 11 without understanding who Monseñor Romero was and the country 12 in which he lived and died. 13 (Photos were shown of the Monseñor.) 14 El Salvador is a small country of 5 million people, 15 about the size of Massachusetts. In the late 1970s, it was a 16 country where the division between rich and poor was among the 17 worst in Latin America. Landholdings remained concentrated in 18 the hands of a few, 14 families, it is said, and the vast 19 majority of the population works for peasant wages to tend to 20 the coffee crops of these few oligarchs. 21 An understanding between the military and the 22 oligarchs ensured that the power was maintained by the few at 23 the expense of the many. This understanding was implemented 24 by the security forces, both through outright government 25 repression and through death squad terror. 20 1 It is important to note here that the U.S. played a 2 complex role in all of this, often supporting the repressive 3 regimes with military aid, and at other times implementing a 4 foreign policy that emphasized human rights that succeeded in 5 reining in the violence. You will hear more about the U.S.'s 6 role from Ambassador Robert White, who was the U.S. Ambassador 7 to El Salvador at the time of the crime. 8 When opposition started to emerge to this order, the 9 powerful few in El Salvador stole elections and eliminated 10 their opposition. Torture, killings, disappearances: The 11 spread of terror were used in an effort to destroy any 12 attempts to organize for social change. They targeted 13 students, workers, professors, human rights activists, and 14 perhaps, most of all, the Catholic Church. This, in a country 15 that was overwhelmingly Catholic. 16 The Church there began to respond to these 17 conditions. Liberation Theology, which originated at a 1968 18 church conference in Medellin, Columbia, began to grow and 19 spread through Latin American. A significant portion of the 20 Church in El Salvador began to move from supporting the 21 powerful toward being a church of the people. Being "of the 22 people" meant that many in the Church began to work to combat 23 social injustice and poverty, to empower the poor and 24 disenfranchised, to organize communities and to document the 25 growing number of human rights abuses. And they were growing 21 1 at this time. 2 Monseñor Romero's own spiritual journey exemplifies 3 the journey of the Church in Latin America at this time. He 4 was a religious conservative at the time of his elevation to 5 Archbishop, considered to be quiet, bookish, and no threat to 6 the established order. He had served as a priest and a Bishop 7 in the Eastern provinces of El Salvador without earning the 8 ire of the particularly repressive landowners of that area. 9 This began to change shortly after his elevation to 10 Archbishop. In March 1977, Rutilio Grande, a priest and a 11 good friend of Monseñor Romero, was killed. This contributed 12 to Romero's increasing awareness of the growing human rights 13 abuses being committed in his land. And they were growing 14 during this time. 15 (Photographs of human rights abuses were shown.) 16 These are but a few representative photos of the 17 kinds of human rights abuses that were becoming commonplace. 18 Monseñor began to speak out about these abuses in his 19 weekly homilies. He broke the silence, naming the victims and 20 naming the perpetrators. These homilies were broadcast all 21 across El Salvador by the Church's radio station and were 22 heard by most of the country. 23 At his final homily on March 23, 1980, the "Voice of 24 the Voiceless," as he was known, took a bold new step. He 25 declared, "In the name of God, then, and in the name of this 22 1 suffering people, whose cries rise to heaven each day more 2 tumultuous, I implore you, I beg you, I order you, in the name 3 of God, stop the repression!" 4 So why did they kill the Monseñor? The evidence will 5 show in this proceeding that there were several reasons. 6 First, they silenced the leading advocate for human 7 rights in El Salvador. More than two-thirds of all the radios 8 in El Salvador were tuned to his weekly homilies and they were 9 the only source of information widely available of the human 10 rights abuses that were being committed, and he documented 11 them in his weekly homilies. 12 Second, they sought to silence all other critics of 13 the regime by creating an atmosphere of total fear. If they 14 could do this to the Monseñor, nobody was safe. 15 Third, they eliminated the possibility of a 16 nonviolent solution to the political and social crisis that 17 was gripping El Salvador at that time. 18 As Ambassador White described then before Romero was 19 killed and will again in this proceeding, Monseñor was the 20 only bridge between the polarized forces in that country. 21 The far right did not want a bridge, they wanted 22 chaos and total war. For them, the moderates were more 23 dangerous than the guerillas. 24 Finally, at killing Romero, they established impunity 25 for the powerful, thereby creating a sense of powerlessness 23 1 for all others. Monsenor's killers stood above the law; they 2 were the law. They wanted to send a message and they did. 3 They wanted chaos, violence and war, and they got that too. 4 The impact of the assassination soon became apparent 5 in an escalation of violence and an increasing polarization of 6 the society. 7 The first large scale massacre of this period took 8 place within two months of Romero's killing at the Rio Sumpul, 9 where more than 600 civilians were slaughtered by government 10 forces. 11 You will hear testimony of numerous other high 12 profile killings that soon followed Romero's. By the end of 13 the year, 1980, somewhere between 10,000 and 12,000 civilians 14 had been murdered in that small country. The rate of killing 15 went off the charts and no one was safe. If they could kill 16 Monseñor, they could kill anyone. And they did. 17 Before the year was out, the FMLN, the guerilla army, 18 was formed, and the country descended into full-scale civil 19 war. The mass migration of Salvadorans from that conflict 20 soon grew. 21 The legacy, then, is a paradoxical one. Romero is an 22 inspiration for many, as you will hear, as a symbol of hope 23 and nonviolent opposition. Yet at the same time, he is a 24 symbol of impunity. Indeed, his is the paradigmatic case of 25 impunity. 24 1 It is hoped that this proceeding will eliminate that 2 second aspect of his legacy. 3 We proceed here then with claims under the Alien Tort 4 Claims Act and the Torture Victims Protection Act. Both the 5 ATCA and the TVPA make actionable in U.S. courts certain 6 violations of International norms. 7 Let's address the TVPA first. The Torture Victim 8 Protection Act of 1991; included amongst the actionable 9 violations of law, are torture, but also extrajudicial 10 killings. And the TVPA defines extrajudicial killings as 11 follows: 12 The definition of extrajudicial killing, section 13 3(a): "For the purposes of this Act, the term 14 'extrajudicial killing' means a deliberate killing, 15 not authorized by a previous judgment pronounced by a 16 regularly constituted court." 17 Congress passed the TVPA in 1991. The U.S. Supreme 18 Court in the Sosa v. Alvarez-Machain decision of just a little 19 over a month ago, stated, quote, "The TVPA establishes an 20 unambiguous modern basis for federal claims of torture and 21 extrajudicial killing." 22 Plaintiff brings this action under the ATCA, in 23 addition to the TVPA. The Alien Tort Claims Act provides 24 jurisdiction for a claim of extrajudicial killing, as does the 25 TVPA, and also provides jurisdiction for a claim for crimes 25 1 against humanity. 2 Crimes against humanity are defined as an act 3 committed as part of a widespread or systematic attack 4 directed against a civilian population. 5 The ATCA grants federal district courts jurisdiction 6 over civil actions brought by an alien for a tort committed in 7 violation of the "law of nations" wherever it occurs. 8 In the Sosa v. Alvarez-Machain decision of just over 9 a month ago, the United States Supreme Court affirmed that the 10 ATCA does indeed provide jurisdiction for these kinds of 11 actions. 12 It stated, quote, "For two centuries we have affirmed 13 that the domestic law of the United States recognizes 14 the law of nations and incorporates them into the 15 federal common law." 16 It continues: "The position we take today has been 17 assumed by some federal courts for 24 years, ever 18 since the Second Circuit's decision in Filartiga v. 19 Peña-Irala." 20 "For purposes of civil liability," which is what we 21 are here to do today, "the torturer has become like a 22 pirate and slave trader before him: Hostis humani 23 generis, an enemy of all mankind, and the same 24 applies to those who engage in extrajudicial 25 killings." 26 1 Finally, the court stated, "Actionable violations of 2 international law must be a norm that is specific, 3 universal and obligatory." 4 There is no question that extrajudicial killings and 5 crimes against humanity constitute specific universal and 6 obligatory violations of international law. 7 Both the TVPA and the ATCA provide for damages to be 8 awarded, both compensatory damages and punitive damages. 9 Punitive damages are to be based upon the following 10 factors which have been derived from the case law, which is 11 actually fairly full at this time. 12 Six factors: The brutality of the act. We have 13 already seen, this was indeed a brutal act. 14 The egregiousness of the defendant's conduct. You 15 will hear evidence during this proceeding with regard to 16 Saravia's conduct in this brutal act. 17 The unavailability of criminal remedy. As we have 18 already discussed, there has been none in this case. 19 The international condemnation of the acts. The 20 collage of headlines from around the world testifies to that, 21 as does the large number of dignitaries from around the world 22 that attended the funeral. 23 Finally, perhaps most importantly, the last two 24 factors: Deterrence of others from committing similar acts, 25 and to redress the harm caused to the plaintiff, the country 27 1 and indeed the world. 2 As we discussed before, this is an evidentiary 3 hearing on plaintiff's application for default judgment. The 4 defendant has not answered the complaint. The allegations in 5 the complaint are, therefore, established. 6 And there are several key facts about Alvaro Saravia. 7 As we discussed, he was a captain in the Salvadoran Air Force. 8 He also was a close confederate of Roberto D'Aubuisson since 9 at least 1977. 10 Roberto D'Aubuisson was the founder of the ARENA 11 party in El Salvador and, as the evidence will clearly show, 12 he was the leader of the death squad responsible for the 13 assassination of Monseñor Romero. 14 Saravia was involved in planning and executing the 15 assassination. He provided and instructed the driver. He 16 reported on the job's completion to D'Aubuisson, and he paid 17 the assassin. 18 He has been determined to be responsible for this act 19 by the UN Truth Commission and the Inter-American Commission 20 on Human Rights, yet he has never been held legally 21 responsible. 22 This is a cable, your Honor, which we will submit in 23 evidence, that was sent by the Ambassador to El Salvador, 24 William Walker, in 1988, to the Secretary of State, back in 25 Washington D.C., reporting on the extradition issues that we 28 1 were discussing earlier and, in particular, the facts of the 2 Supreme Court's decision to counsel for Saravia, his habeas 3 corpus counsel in Miami at the time, in 1988. 4 Those attorneys representing Saravia, by the way, are 5 rumored to have been paid for by D'Aubuisson. Those attorneys 6 presented the judgment of the El Salvadoran court to the court 7 in Miami and, shortly thereafter, he was released. 8 This is language taken from that cable. 9 "The facts referred to here clearly links the Saravia 10 defense to an entire realm of coup plotters, death 11 squad chiefs, kidnappers, baby robbers, mad bombers, 12 car thieves and other assorted criminals. None, 13 however, has ever been convicted, and prosecution is 14 unlikely as long as D'Aubuisson and his backers are 15 free to manipulate the Salvadoran judicial system. 16 The U.S. Government must continue in good faith to 17 seek Saravia's expedition, but given what we are up 18 against, the odds are long of his being convicted in 19 the Salvadoran courts." 20 THE COURT: This is the Ambassador of El Salvador 21 faxing to the Secretary of State of the United States? 22 MR. Van AELSTYN: That's correct. This is a 23 declassified Department of State cable. You will see these in 24 the documents, and Ambassador White will describe these, to 25 the normal eye, illegible series of numbers and such at the 29 1 top. They refer to Zulu Time, which is a standard time used 2 by all embassies throughout the world so that the Secretary of 3 State is on the same time with all of the embassies. 4 These are confidential cables sent by the Ambassador 5 back to the Secretary of State. This language sounds over the 6 top. This sounds kind of wild, but this is the U.S. 7 Ambassador William Walker describing these facts and these 8 people. And indeed, as you will hear the evidence during this 9 proceeding, this language was actually not over the top. This 10 was not hyperbole. 11 But within weeks of this cable being sent, Saravia 12 was released from the detention center in Miami and he has 13 been free in the United States ever since that time. 14 As we stated, the liability against Saravia can be 15 established from well-pled facts. The only issue is the 16 determination of damages. The evidence concerning the damages 17 is great. We have already submitted nearly five dozen 18 declarations from witnesses who knew Monseñor and those who 19 did not, from those present at the killing and the funeral, 20 from religious workers, peasants and politicians, from Nobel 21 Laureates to religious leaders around the world. We will come 22 back to these declarations later in the hearing to describe in 23 more detail what these witnesses have said about Monseñor and 24 the impact of his assassination. 25 You will hear testimony from witnesses who will speak 30 1 to the nature of the crime, the environment in which it 2 occurred, and its impact within El Salvador and around the 3 world. 4 While nearly all of our witnesses will touch on the 5 impact that the killing had, the witnesses can be grouped into 6 three broad categories. 7 First, there are those witnesses who will describe 8 the crime and the defendant's culpability. These are two, 9 Amado Antonio Garay, the driver of the assassin, and Judge 10 Atilio Ramirez Amaya, the investigating judge. 11 Second, six witnesses will describe in greater detail 12 the context in which the assassination took place. The 13 Reverend Canon William L. Wipfler, John Cortina, Maria Julia 14 Hernández, Esther Chavez, Francisco Acosta, and Ambassador 15 Robert White. 16 Finally, witnesses will address the issue of the 17 impact on El Salvador and beyond of this killing. Padre 18 Walter Guerra, Bishop Thomas Gumbleton, the Reverend John 19 Fife, and two expert witnesses, Professor Terry Karl and 20 Professor Naomi Roht-Arriaza. 21 There is a broader purpose for this proceeding, your 22 Honor, in addition to the damages. This is a truly emblematic 23 case. There were thousands of victims in El Salvador, all 24 important. But the killing of Monseñor was paradigmatic, both 25 because of his high visibility and the blatant nature of his 31 1 killing. It was meant to send a message and it did. 2 For that reason, achieving some small measure of 3 justice in this case is critical to starting a journey toward 4 a broader measure of justice. There are several ways in which 5 this case has a very real potential to do so. 6 First, this case represents the only means of holding 7 anyone accountable for this act. It is the only way for 8 Monseñor's relative to achieve any justice. 9 Second, it will have a deterrent effect on other 10 human rights abusers, who may think twice about spending their 11 retirement in the U.S. and it may prompt, we hope, the U.S. 12 government into acting against other human rights abusers that 13 have enjoyed a safe haven here. 14 Third, actions such as this represent the U.S.'s 15 contribution to the worldwide effort toward holding human 16 rights abusers accountable. It is an important and 17 complementary role, not an exclusive role. It is not the only 18 one that is being pursued around the world. There are others, 19 you will hear, in expert testimony, but it is the one we have, 20 it is the U.S.'s contribution. 21 Finally, this case can help to establish one of the 22 most important preconditions for societal reconciliation: The 23 channeling of vengeance into the rule of law through the 24 creation of historical record and the establishment of 25 historical truth. 32 1 Is this claiming too much in this proceeding, here in 2 a courtroom in Fresno, California? No. We are not dealing 3 with just one of the more 75,000 civilians that were murdered 4 during this terrible period of violence in El Salvador, we are 5 dealing with the one case that has come to represent them all. 6 Monseñor is that important. 7 Shortly before he died, Monseñor Romero said that if 8 he was killed, he would be resurrected in the people of El 9 Salvador. The evidence will show that, in many ways, this 10 statement cannot be denied. His legacy is great. His spirit 11 lives on. 12 It is the greatness of that person and that spirit 13 that gives the establishment of truth in this case and gives 14 the achievement of justice in this case the very real 15 potential to contribute to the growing movement from impunity 16 toward accountability, the movement toward real hope in Latin 17 America, the hope for justice. 18 Thank you, your Honor. 19 THE COURT: Relative to the law that you have cited, 20 you are proceeding under the Alien Tort Claims Act and under 21 what I understand to be a part of that Act. The Torture 22 Victims Protection Act is also subsumed within -- it has the 23 reference of being a stand alone public law, but it seems to 24 be referenced in 28 U.S.C. section 1350. 25 MR. Van AELSTYN: Well, yes and no, your Honor. 33 1 That's sort of one of the complex issues the Supreme Court 2 addressed in Sosa v. Alvarez-Machain. They do provide 3 independent grounds for jurisdiction, but the ATCA, you are 4 right, provides jurisdiction for violations of international 5 law. 6 The bases of those violations of international law 7 can be drawn from specific, universal and obligatory standards 8 of international law, which can include the TVPA. But it can 9 also include -- the bases for those violations can be found in 10 the Geneva Convention, the United Nations Declaration of Human 11 Rights, and other such universally recognized documents. 12 But, yes, in some sense, the TVPA can also stand as 13 an independent grounds for a violation that is actionable 14 under the ATCA. But, really, we refer to them as kind of 15 parallel bases, because they are independent of each other. 16 THE COURT: And to have standing under the Act, the 17 ATCA refers to an alien. 18 MR. Van AELSTYN: Yes, your Honor. 19 THE COURT: And we also have the understanding from 20 your papers that the cases have not all agreed on even which 21 law is used to determine the standing. In other words, we 22 have no specific definition in the statutes. We have cases in 23 the United States that interpret the statutes, and then we 24 have some reference to international choice of law principles 25 that would look to the law of, in this case, El Salvador. And 34 1 then we have the status of the plaintiff, which has to be, I 2 think, determined to meet the requirements of the Act or both 3 laws. 4 MR. Van AELSTYN: Yes, your Honor. And we did brief 5 this material, and it is our strong belief that -- well, two 6 things. 7 First, that the Court -- there is case law to support 8 the Court's exercise of jurisdiction on the basis of standing 9 determined under U.S. law and need not go to the choice of law 10 analysis. 11 However, if the Court does choose to follow that line 12 of cases, that it does adopt a choice of law analysis, we have 13 submitted an expert declaration by a judge in El Salvador who 14 testifies that an action -- that the plaintiff in this case 15 would have standing under Salvadoran law in addition to U.S. 16 law. 17 So whichever analysis the Court applies from the 18 various cases that are out there, there is no question that 19 J. Doe in this case does have standing. 20 THE COURT: And the understanding from the papers 21 that I have is that the plaintiff is a sibling of the 22 decedent? 23 MR. Van AELSTYN: That's correct, your Honor. 24 THE COURT: And the -- under the U.S. law, which of 25 the case law do you rely on as establishing the status of both 35 1 as an alien and someone who is within the required degree of 2 relation to the decedent? 3 MR. Van AELSTYN: I believe -- first, your Honor, I 4 want to confirm that J. Doe is a close relative of Romero, but 5 the nature of his relationship is under seal and all of the 6 papers concerning the identity of J. Doe have been filed under 7 seal, in accordance with the Court's orders. 8 THE COURT: That's true. Now, in the Court's past 9 experience, usually in a trial, we do have, if you will, a 10 disclosure of the identity. If you are representing to the 11 Court that there is a clear and imminent threat or danger to 12 the plaintiff, then, of course, I suppose we would have to 13 have the submission of that in camera, which you have done. 14 You have filed one of your applications under seal and the 15 other not sealed. 16 But relative to the legal requirement to meet what 17 the law says is the minimum, we are going to have to have 18 jurisdictional facts for the basis of finding that the 19 plaintiff has standing. 20 MR. Van AELSTYN: Yes, of course, your Honor. You 21 know, I just realized, we filed this morning a declaration by 22 the plaintiff under seal which addresses all of these issues. 23 THE COURT: Oh, I haven't seen it. 24 MR. Van AELSTYN: Of course you haven't, your Honor. 25 I'm sorry. I thought it had been filed yesterday. It was 36 1 filed this morning. 2 And if perhaps we could return to the subject after 3 you have had an opportunity to review those -- review that 4 declaration. We did -- I believe that all of the standing 5 issues have been addressed in that declaration. 6 THE COURT: All right. Well, on your representation, 7 I will, then, at the recess, read the declaration. 8 MR. Van AELSTYN: All right, thank you, your Honor. 9 I apologize. We should have done that yesterday. 10 THE COURT: All right. Well, then, in terms of the 11 way we are proceeding, the Court understands that your 12 position is that the allegations of the complaint relative to 13 liability have been established as true by the lack of a 14 response and opposition in the default process. 15 But relative to the elements to obtain a remedy that 16 you seek, you are going to, nonetheless, offer evidence, which 17 I think would be appropriate if you are going to ask for 18 judgment of the character that you've described. 19 MR. Van AELSTYN: Yes, your Honor. We entirely 20 agree. We recognize that a matter of this magnitude should 21 not rest upon a technicality of a default, so we do intend to 22 submit evidence to provide a sound foundation for a ruling in 23 favor of the plaintiff on the claims that have been brought. 24 THE COURT: All right. If you are ready, then you 25 may call your first witness. WIPFLER - D 37 1 MR. Van AELSTYN: Thank you, your Honor. We are. We 2 call as our first witness, the Reverend Canon William L. 3 Wipfler. 4 THE COURT: Please come forward, Reverend. 5 WILLIAM L. WIPFLER, 6 called as a witness on behalf of the Plaintiff, having been 7 first duly sworn, testified as follows: 8 THE CLERK: Please state your name for the record. 9 THE WITNESS: William Louis Wipfler. 10 THE CLERK: Thank you. You may take the stand. 11 THE COURT: You may proceed, Mr. Van Aelstyn. 12 DIRECT EXAMINATION 13 BY MR. Van AELSTYN: 14 Q. Good morning, Father Wipfler. 15 If I may, can I approach the witness, your Honor? 16 THE COURT: You may. 17 BY MR. Van AELSTYN: 18 Q. I have provided to you two documents. The first, I 19 believe, is your resume, and the second, I believe, is a 20 declaration that you prepared earlier. Could you just take a 21 quick look at them to confirm if these are indeed what I 22 represented they are. 23 A. (Witness examines the documents.) They are. 24 Q. Thank you. With regard to your resume, Father Wipfler, 25 where do you presently reside? WIPFLER - D 38 1 A. I live in West Seneca, New York. 2 Q. What do you do there? 3 A. I'm retired, and presently a nonstipendiary associate 4 priest in St. Matthias Episcopal Church in East Aurora, New 5 York. 6 Q. The Episcopal Church? 7 A. Yes. 8 Q. Just running down your resume, what position did you hold 9 from 1992 through 1994? 10 A. I was the Associate for Human Rights at the Anglican 11 Office of the United Nations. 12 Q. And prior to that time, from 1989 to 1991, what position 13 did you hold? 14 A. I was deputy to World Mission at the national headquarters 15 of the Episcopal Church. I was special adviser to the 16 Presiding Bishop in matters of human rights. 17 Q. And from 1977 through 1988, which covers the period that 18 will be at issue in this matter, what position did you hold at 19 that time? 20 A. Director of the Human Rights Office of the National 21 Council of Churches. 22 Q. What is the National Council of Churches, Father Wipfler? 23 A. It's an ecumenical commission of 34 denominations of 24 Protestant churches plus a number of orthodox churches, as 25 well. WIPFLER - D 39 1 Q. And what was the Human Rights Office of the National 2 Council of Churches? 3 A. It had as its primary function a response to human rights 4 concerns on a worldwide basis. I happen to be -- my academic 5 work and my experience had been in Latin America principally, 6 so as a result, a great deal of emphasis in the beginning of 7 the work of that office was on Latin America and, 8 particularly, the crisis of Central America. 9 It involved gathering considerable amounts of 10 information about specific violations, and then presenting 11 them to entities of an international nature, like the 12 International Commission of Jurists, or Amnesty International, 13 or to committees of the Congress. 14 Q. You have testified in Congress? 15 A. I was present at many hearings and presented testimony 16 concerning violations of human rights in other countries, yes, 17 and also at the United Nations. 18 Q. And how did you gather the evidence concerning these human 19 rights violations? 20 A. There are a number of ways of doing that. One of those, 21 of course, was once the office was established, and even prior 22 to that, in my prior position, receiving an enormous number of 23 affidavits from church entities within the other countries 24 that were human rights organizations within those countries 25 that provided us with information. WIPFLER - D 40 1 And also the formation of a large number of 2 delegations that visited countries that had particularly 3 egregious reputations in regard to violations of human rights. 4 And doing on site investigations. 5 Q. And did you visit El Salvador during this period as part 6 of that work? 7 A. Yes, a number of times. 8 Q. I see that prior to your role as the Director of Human 9 Rights Office, according to your resume, from 1967 to 1977, 10 you were the Director of the Latin America Department of the 11 National Council of Churches; is that right? 12 A. Yes. I had two roles. One was a role of relating to 13 ecumenical organizations within Latin America. There were 14 many of those. Organizations, coalitions similar to the 15 National Council of Churches. 16 And in addition, we worked in social development and 17 other types of projects which involved relationships with 18 organizations that were attempting to improve the quality of 19 life of persons in those countries. 20 Q. You mentioned academic work in this area. You have a 21 doctorate; is that right? 22 A. I do, right. I have a Ph.D. and I have a Master's degree, 23 and my major field of study was the history of the Church in 24 Latin America, but I was particularly interested in the social 25 and political role of the Church and State/Church relations. WIPFLER - D 41 1 Q. We would ask an obvious question now, Father Wipfler. Do 2 you speak Spanish? 3 A. Yes. 4 Q. You conducted your research in these countries in Spanish? 5 A. Yes. 6 Q. In the course of your work, did you come to know Monseñor 7 Oscar Romero? 8 A. Yes. I, actually, in 1976, I was responsible for the 9 preparation and presentation of a testimony before a committee 10 of Congress, International Affairs Committee in House, and at 11 that time, it was on El Salvador, Guatemala and Honduras, but 12 I paid the greatest amount of attention to El Salvador. 13 And a number of Salvadorans who were at that 14 particular hearing introduced themselves, and it began a very 15 rich communication between them and my office, providing me 16 with a lot of information about the problems that were arising 17 in El Salvador. 18 Q. And this was in 1976? 19 A. '76. 20 Q. I'm sorry to interrupt you, Father. Could you move the 21 mike to your left? Thank you. I would like to be able to see 22 you as you talk. 23 A. All right. 24 Q. Thank you. And how did you come, then, to know Monseñor 25 Romero? WIPFLER - D 42 1 A. Well, one of the people who was writing to me was very 2 concerned about the role of the Church in El Salvador. He was 3 a fan of Archbishop Chavez, who was the prior Archbishop. 4 And when Archbishop Romero was elected, he wrote a 5 letter to me that expressed a considerable amount of concern 6 because he was afraid that it would be the end of a kind of 7 social concern, political concern that the former Archbishop 8 had shown. He felt that Archbishop Romero was two things, too 9 conservative to continue such a ministry because of his past, 10 and also too young. 11 I said, "He is only 60. We are going to have him 12 around for an awfully long time." 13 And that was the beginning of my knowledge of the 14 Archbishop. But when Father Rutilio Grande was murdered -- 15 Q. When was that? 16 A. That was in, I must confess, I have lost the dates. I 17 think it was '78, but I'm not certain. 18 Q. I will represent to you that it was March 12, 1977. 19 A. Oh, '77. Within weeks of that, less than weeks, almost 20 immediately, some things must have been said by the Archbishop 21 that changed this man's mind. And he sent me a very warm 22 letter saying that the Archbishop's mood had changed, that he 23 had expressed such warm feelings about the outpouring of love 24 and concern that, undoubtedly, the ministry that Father Grande 25 was carrying on was an appropriate ministry and that he was WIPFLER - D 43 1 really demonstrating -- Archbishop Romero, was demonstrating 2 an interest in the way in which that ministry had been carried 3 out. 4 I sent a letter in the name of the ecumenical 5 community in the United States expressing condolences to the 6 Archbishop, when I found that Father Grande was a friend, 7 expressing to him our concern about the murder. 8 Q. So what you heard about Monseñor's Romero's change of 9 heart came from your correspondence in El Salvador? 10 A. Mostly, yes. There were some other things that were 11 beginning to come to us, some writings, an article from 12 someone in El Salvador. 13 Q. So you then wrote a letter to Monseñor Romero to express 14 condolences? 15 A. I did. And I received a letter back expressing his 16 gratitude for our expression and concern, and inviting me, if 17 I were ever in El Salvador, to visit with him. 18 Q. When did you first do so? 19 A. The following year. 20 Q. In 1978? 21 A. Yes. 22 Q. And you met with the Monseñor Romero at that time? 23 A. Yes, but it brief. He was exceedingly busy, but was 24 equally warm -- a sense of warmth. And then one of our 25 colleagues created a great friendship with him, a man by the WIPFLER - D 44 1 name of Dr. Jorge Lara-Braud. And a lot of communication was 2 occurring through Dr. Lara-Braud and our office, that he was 3 kind of an intermediary at times for me. 4 Q. Dr. Lara-Braud was with the National Council of Churches? 5 A. He was an Associate General Secretary, yes. 6 Q. You visited with Monseñor Romero in 1978 and subsequently 7 as well? 8 A. Yes. 9 Q. And can you identify Monseñor Romero, photographs of him? 10 A. Absolutely. 11 Q. Can you take a look at the first binder in front of you? 12 A. (Witness complies.) Yes. 13 Q. I'm sorry, not your declaration, but the binder, the stack 14 of binders there. The small one. I believe you looked at 15 this before. 16 A. Yes, I did. 17 Q. Could you flip through this and tell me if you recognize 18 photographs of Monseñor Romero? 19 A. I do. 20 Q. Perhaps if you can quickly refer to the exhibit numbers, 21 Exhibit 2 is the first one. 22 A. Yes. 23 Q. And I will just make this point. 24 I'm not sure I made it before, your Honor. The 25 exhibit numbers, there are some gaps in the numbering. But WIPFLER - D 45 1 all of the tabs do correspond with the actual numbers. 2 Exhibit number 4, is that Monseñor Romero, the next 3 page? 4 A. It is, yes. 5 Q. And who is that to his far left, do you know? 6 A. I'm sorry, I don't. 7 Q. All right. 8 A. But I know who is to his right. 9 Q. Who is that to his right? 10 A. That is the Archbishop -- oh, at that time Bishop, but who 11 then succeeded him as Archbishop. 12 Q. Rivera y Damas? 13 A. Rivera y Damas. 14 Q. And Exhibit 11? 15 A. Yes, that is the Archbishop. 16 Q. 12 and 13? 17 A. Also the Archbishop. 18 Q. 16 and 17? 19 A. Yes. 20 Q. 18 and 19? 21 A. That's right, Archbishop Romero. 22 Q. Exhibit 20? 23 A. Yes. 24 Q. Exhibit 24, 25? 25 A. Yes. Those are pictures at the time of the assassination. WIPFLER - D 46 1 Q. 27 and 28? 2 A. I'm assuming 27 is, only because he is not quite visible 3 in it, but I know those pictures, yes. 4 THE COURT: All right, well, there is a legal 5 technicality here, Reverend. The law doesn't permit you to 6 assume. You may give your best estimate -- 7 THE WITNESS: All right. 8 THE COURT: -- by recognizing the surroundings, other 9 persons, or the context of the photograph to be able to state 10 what you believe it to be. 11 THE WITNESS: Yes. I believe that that is Archbishop 12 Romero by the fact that it is -- there is a continuity in the 13 pictures as well. The context is clearly at the day of his 14 assassination. 15 THE COURT: Thank you. 16 BY MR. Van AELSTYN: 17 Q. Similarly, 29 and 30? 18 A. Also, yes. 19 Q. And 33 and 34? 20 A. Yes. 21 Q. Flip a few pages to 42 and tab 40. 22 A. 42, yes. 23 (Photographs were shown.) 24 Q. Flipping a few more to tab 51, Exhibit 51. 25 A. Yes, that's him. WIPFLER - D 47 1 Q. And 52 and 55, on the next pages? 2 A. Also. 3 Q. And 57? 4 A. Yes. 5 Q. And 60? 6 A. Yes. 7 Q. Flipping several more pages, to Exhibit Number 73? 8 A. Yes. 9 Q. And 74? 10 A. Also. 11 Q. And 75 and 76 on the next page? 12 A. I will not say 76, because I didn't know him at that point 13 in his life. It looks like a picture of his youth. 14 Q. All right, thank you. Well, I will leave it at that. 15 Exhibit 77? 16 A. Yes. 17 Q. Do you know who that is with him in that photograph? 18 A. I'm sorry, I do not. 19 Q. And flipping towards the last pages, Exhibits 87 and 88? 20 A. Yes, those are pictures I'm familiar with. 21 Q. And Father Wipfler, just to continue here, in this second 22 binder there, you will see Tab Number 100. 23 A. Yes. 24 Q. Is that Monseñor Romero? 25 A. It is. WIPFLER - D 48 1 Q. Who is that next to him? 2 A. That's myself. 3 Q. And Exhibit Number 101? 4 A. Yes. 5 Q. That's Monseñor Romero? 6 A. That is. 7 Q. Who is holding the microphone? 8 A. I'm holding the microphone. 9 Q. All right. We will return to these photographs a little 10 later. 11 A. All right. 12 THE COURT: Are you offering these into evidence? 13 MR. Van AELSTYN: Yes, your Honor, we are. 14 THE COURT: All right. The Plaintiff's Exhibits 2, 15 4, 11, 12, 13, 16, 17, 18, 19, 20, 24, 25, 27, 28, 30, 33, 42, 16 51, 52, 58, 57, 60, 63, -- excuse me, 73, 74, 75, 77, 87 and 17 88, 100 and 101 are received in evidence. 18 (Plaintiff's Exhibits 2, 4, 11, 12, 13, 16, 17, 18, 19 19, 20, 24, 25, 27, 28, 30, 33, 42, 51, 52, 58, 57, 60, 73, 20 74, 75, 77, 87, 88, 100 and 101 were received.) 21 BY MR. Van AELSTYN: 22 Q. Father, if I could draw your attention to the period of 23 time of March 1980. Did there come a time in that period when 24 you became concerned about Monseñor Romero? 25 A. Yes. Particularly, in February. It was kind of a WIPFLER - D 49 1 culmination. I had been reading a lot of material coming from 2 the Archdiocese, Orientacíon, which is the bulletin of the 3 Archdiocese. I read that on a regular basis. 4 And I managed to have someone sending me all of the 5 transcripts of his sermons, and I had been reading them also. 6 They arrived in packages, and I made it weekend reading always 7 because they were so powerful and containing evidence that we 8 were beginning to use. Because we knew that the Legal 9 Assistance Office of the Archdiocese was doing such an amazing 10 job of gathering information for him. 11 Q. What kind of information? 12 A. It was information on the violations. And the thing that 13 was important about it, all of his sermons, was this amazing 14 balance, which was always present, of the presentation of the 15 violations of human rights from both the Armed Forces, the 16 death squads, which was like saying the same thing, in a 17 sense, because the death squads were usually off duty military 18 officers, combined with other people who liked to be part of 19 that kind of thing. And then the other materials that came. 20 But, finally, the thing that made us most worried, I 21 mean his heroism was clearly calling for some response, a 22 violent response, probably from the military or the death 23 squads. But then he wrote a letter to President Carter in 24 February asking for the ending of military assistance, because 25 it was only resulting not in resolving the problems, but WIPFLER - D 50 1 adding to the violence and resulting in the deaths of the 2 people. 3 Q. A moment ago, Father Wipfler, you said in his sermons, he 4 cataloged human rights abuses of government forces and death 5 squads? 6 A. Oh, I'm sorry. 7 Q. When you said "balance"? 8 A. When I said "balance," I really meant that he referred to 9 those, but then he was also referring to the opposition's 10 violations as well. I mean he would talk about the abuse of 11 the police or the fact that some military men had been killed 12 or some lieutenant of one of the oligarchy had been killed, 13 that sort of thing. 14 So his balance was always very important to us, 15 because it was a demonstration of his concern about human 16 rights as human rights and not only who committed it and 17 choosing one side. 18 Of course, the incredible amount that was being done 19 by government forces was overwhelming in all of those 20 recountings of violations. 21 Q. Did that very balance then affect your reaction to 22 Monseñor's letter to President Carter? 23 A. It was always a piece of the background. Our concern -- 24 my concern personally in the United States, and this may not 25 be relevant, but my concern was the amount of assistance that WIPFLER - D 51 1 was going to forces that were really repressive all throughout 2 Latin America. And it was a great concern to me. 3 So that that piece was an important part of the whole 4 context that I was viewing as the Human Rights Director in the 5 National Council. 6 Q. And did you take any steps to act upon that concern in 7 March of 1980? 8 A. There are several different groups that were -- had been 9 talking. And you have to understand that in the ecumenical 10 community, there was an enormous amount of communication going 11 on constantly between people who were observing and keeping 12 statistics on human rights problems. 13 We met at hearings. We compared the things that we 14 were learning. And I found out that Mr. Thomas Quigley, who 15 was at the U.S. Catholic Conference, had been thinking of 16 going to El Salvador. 17 And I also knew that the American Friends Service 18 Committee, which was a Quaker organization, wanted to have 19 someone going, and we discussed the possibility instead of 20 doing it on our own, each of us, to go together, as a 21 delegation. 22 And it was interesting was that we all wanted to do 23 the same thing. And we realized having a number of people 24 doing those things would be important. 25 We had three purposes when we finally went. WIPFLER - D 52 1 Q. What were those three purposes? 2 A. Well, the first one was to express our great debt of 3 gratitude. And also, just as human rights advocates, the 4 sources that the Archbishop provided for us to understand the 5 situation in El Salvador. So we wanted to express real 6 gratitude to him for the kind of heroism that he was showing 7 in this struggle. 8 The second thing was to express, I guess the word is 9 "solidarity" with him about the ending of U.S. assistance, 10 because it was apparent that U.S. assistance was creating 11 problems in so many places at that particular moment. 12 And the third thing, we felt that if we were all 13 there, we could do a really intensive on-site investigation by 14 going to all of those organizations that we knew were there, 15 seeing the U.S. Embassy, getting, if we could, into major 16 government circles. We managed, when we did go in the 17 delegation, to see the Presidency, for example, not the 18 president, but to get into the Secretary of the Presidency. 19 Q. Father Wipfler, if I may, for just a moment, who were the 20 members of the delegation that went? 21 A. The Reverend Alan McCoy, who was the President of the 22 Conference of Major Religious Superiors of Men in the United 23 States. He was a Franciscan priest. 24 Mr. Thomas Quigley, who was the -- in the Office of 25 Justice and Peace of the U.S. Catholic Conference, the WIPFLER - D 53 1 Bishop's conference in the United States. 2 Ms. Betty Richardson Nute, who was the Vice-President 3 of the American Friends Service Committee. Ronald Young, who 4 was their human rights officer at the Quakers, and I. I was 5 the fifth person. 6 Q. So there were five of you? 7 A. Yes. 8 Q. And each of you was acting in your official capacity? 9 A. Yes, we were. 10 Q. So you were not five individuals? 11 A. No, no, no. We were actually sent -- each of us received 12 the support of the organization that we belonged to. 13 Q. And how many denominations, then, of U.S. churches were 14 represented by that delegation of five? 15 A. For my organization, 34 Protestant and Orthodox churches, 16 and the American Friends Service Committee was an entity in 17 itself, the Quakers, and the U.S. Catholic Conference. 18 Q. When did you arrive in El Salvador? 19 A. March 21st. 20 Q. Which was a Friday, right? 21 A. That's correct. 22 Q. And on Saturday, March 22nd, what did you do as a 23 delegation? 24 A. Well, on March 21st, in the evening, we were greeted by 25 the someone from the Archbishop's office, and then there are a WIPFLER - D 54 1 number -- it was a rather informal meeting, but it was an 2 amazing informal meeting -- it was not supposed to have been 3 scheduled -- in which we talked about the general situation. 4 And then on Saturday, we started, because we knew it 5 wasn't until late afternoon that we would meet with the 6 Archbishop, we started to do some of the investigating that we 7 wanted to do, speaking with the experts from the Socorro 8 Jurídico. 9 Q. What is Socorro Jurídico? 10 A. It is the Legal Assistance Office that the Archbishop 11 created. And we spoke with Roberto Cuellar, who was the 12 Executive Director of that office. 13 And then we also spoke with Head of the Social 14 Ministries of the Archdiocese. 15 Q. Both of these offices are located at the Archdiocese 16 offices in El Salvador? 17 A. The office of Socorro Jurídico, the Legal Assistance 18 office, was in another place because it was more secure. They 19 were worried about the documentation they maintained, which 20 was very personal documentation of many people. The social 21 assistance office was in the Archdiocese. 22 Q. And did you come to meet with any of Monseñor Romero's 23 advisers? 24 A. All. Everyone who was there, the Chancellor of the 25 Diocese. Persons who ran his -- Orientacíon. And we were WIPFLER - D 55 1 able to get further documentation, articles that the 2 Archbishop had written, that weren't only in Orientacíon, but 3 were in other magazines, and many of us came away with 4 recordings of his sermons. 5 Q. Which documented human rights abuses, as you said before? 6 A. The center of every sermon every Sunday, the heart of his 7 sermons, the sermon was constructed in a very brilliant way, 8 and I must confess, I have plagiarized the method in the past 9 myself. 10 Q. In your preaching, not in your testifying today? 11 A. In my preaching. And that is it would start with a 12 marvelous exegesis, a Biblical study for the readings of the 13 day. Would move to the way in which that was in reference to 14 the society and things that were happening in El Salvador, and 15 then to a catalog of everything that had occurred that week. 16 And his sermons were sometimes 30, 40 minutes, 50 17 minutes long, and people just hung on every word. And so 18 those sermons are kind of a treasure for many of us. 19 Q. We will return to that in a moment, Father Wipfler. You 20 mentioned you had a meeting with Monseñor Romero that 21 afternoon of March 22nd. Did you meet with him? 22 A. We did. We met with him at his office. And he was very 23 welcoming and very grateful that a delegation would have come 24 from a wide variety, particularly like the ecumenical nature 25 of the delegation. WIPFLER - D 56 1 It was during that conversation that he -- we had 2 already had some evidence in the morning going into the Legal 3 Aid Office of how bad things were, but he was saying that the 4 moral fiber of the society was falling to pieces. And he 5 described some of the things that were being done, like the 6 cutting off of the fingertips of people and pouring acid on 7 their faces so that the victims could not be identified, and 8 bodies left nude and so on. 9 Q. Did he indicate that this was a worsening of the human 10 rights situation then? 11 A. He said it was getting deeper into the "barbarity," that 12 was the phrase he used. 13 Q. What else did he say during that meeting? 14 A. We went on to talk about the general situation. He 15 provided us with the names of other people who he felt were 16 important to see. 17 And then he did something which was very moving to 18 all of us. He asked Father McCoy to come celebrate mass the 19 next day with him. 20 Q. He was the Franciscan priest? 21 A. He was the Franciscan priest, yes, and he asked Tom 22 Quigley from the U.S. Catholic Conference to read one of the 23 scripture readings and asked me, a non-Roman Catholic 24 Protestant Episcopalian, to read one of the other readings. 25 And we felt that was a considerable honor, to be asked to WIPFLER - D 57 1 participate in his Sunday Mass. 2 Q. And did you then attend that Mass the next day? 3 A. We did. We -- that Mass was early in the morning on 4 Sunday. 5 Q. Where was it? 6 A. It was at the Basilica. There were major repairs being 7 done to the cathedral, so all of the activity of the Diocese 8 was done at the Basilica. 9 We arrived early. And it was already full. And 10 people were gathering in the streets because there were 11 loudspeakers just outside the church so that people could hear 12 the Mass and the sermon. 13 Q. Was that different from church services you had 14 experienced in the U.S.? 15 A. That was when attendance was falling off in churches and 16 one might find that there was lots of room to sit down in most 17 cases. In the Basilica, there were no chairs. The 18 congregation stood -- except for the elderly, there was some 19 pews left in the front, but the remainder of the church was 20 just an open space, and everyone stood. 21 Q. Throughout the entire service? 22 A. Throughout the entire service. And we happened to be the 23 dignitaries who were present for the event, so we sat toward 24 the alter. The alter was in the center, and we were on the 25 side, right facing the alter, within a few feet of the alter. WIPFLER - D 58 1 Q. Did you hear Monseñor Romero's sermon that day, his 2 homily? 3 A. I did. 4 Q. I would like to play for you a short excerpt from that 5 homily and ask you to identify it as his voice, if you can. 6 A. All right. 7 MR. Van AELSTYN: For the information of the Court, 8 this is Exhibit 92. 9 THE COURT: May we have the stipulation that the 10 court reporter doesn't have to attempt to take down what is on 11 the recorder? 12 MR. Van AELSTYN: Yes, your Honor. We can actually 13 provide the court reporter with a translation, which will be 14 represented as well. 15 THE COURT: All right. After this, then, we are 16 going to take the morning recess. 17 MR. Van AELSTYN: Very good, your Honor. 18 While our assistant is looking for it, I will point 19 out that Exhibit 92 in the binders contains the translation as 20 well as a copy of the audio. That might assist the court 21 reporter. 22 THE COURT: Thank you. 23 (The excerpt was played follows:) 24 "Did you notice what today's reading has said so 25 beautifully? 'You glorify the first exodus when I WIPFLER - D 59 1 took you out of Egypt, when you crossed the desert. 2 What many wonders were made on that journey with 3 Moses! But glory no longer in that past. That has 4 already become history. I make things anew.' What a 5 beautiful phrase from God! It is God who makes the 6 new: It is God who goes with history. 7 "Now the exodus will be from another direction, from 8 Babylon, from exile. The desert through which they 9 are going to pass will flower like a garden, the 10 waters will gush forth symbolizing the passing of 11 God's pardon, of the people reconciled with God on 12 the way to Jerusalem, which is no longer exactly the 13 slavery of Egypt but rather the exile from Babylon, 14 and that is how history will continue to happen. 15 "Today El Salvador is living its own exodus. Today 16 we too are passing to our liberation through the 17 desert, where cadavers, where anguished pain are 18 devastating us, and where many suffer the temptation 19 of those who were walking with Moses and who wanted 20 to turn back and who didn't help. God desires to 21 save the people making a new history. History does 22 not repeat itself, even if the saying says, 'history 23 repeats itself.' Some things appear to be 24 repetition, but what is not repeated in history are 25 the circumstances, the opportunities to which we are WIPFLER - D 60 1 witnesses in El Salvador. How dense is our history, 2 how varied from one day to another! One leaves El 3 Salvador and returns the following week and it seems 4 that history has changed so categorically. Let us 5 not rest our stability on wanting to judge things as 6 they once were judged. One thing yes: May we have 7 firmly anchored in the hour our faith in Jesus 8 Christ, God of history. That does not change; but he 9 has, as it were, the satisfaction of changing 10 history, playing with history: 'I make things anew.' 11 "The grace of the Christian, therefore, is to not be 12 braced on traditions that can no longer sustain 13 themselves, but to apply the eternal tradition of 14 Christ to present realities. Change in the Church, 15 dear brothers and sisters, above all for those of us 16 who have been formed at other times, in other 17 systems, we have to have; and we have to ask God for 18 that grace to adapt ourselves without betraying our 19 faith, to be understanding with today's times. God 20 makes things new and for this reason he corrected the 21 Israelites because they were pleased with the first 22 exodus but they didn't think that God was doing any 23 more wonderful things on a second exodus and that he 24 would do them even greater in the Christian Era as we 25 are seeing ourselves." WIPFLER - D 61 1 BY MR. Van AELSTYN: 2 Q. Father Wipfler, was that the voice of Monseñor Romero? 3 A. It was, yes. 4 THE COURT: At this time, we are going to take the 5 morning recess. We will stand in recess until 11:00 a.m. 6 MR. Van AELSTYN: Thank you, your Honor. 7 (Recess) 8 THE COURT: Going back on the record in Doe versus 9 Saravia. 10 Mr. van Aelstyn, you may continue. 11 MR. Van AELSTYN: Thank you, your Honor. 12 BY MR. Van AELSTYN: 13 Q. Father Wipfler, we ended the morning session with an 14 excerpt from a homily that was preached by Monseñor Romero and 15 you identified his voice. Do you recall that homily as being 16 the one you heard on March 23, 1980? 17 A. Yes, absolutely. 18 Q. You also testified earlier about the structure of his 19 homilies. Can you tell us about that again? 20 A. Yes. There was always this marvelous use of the Biblical 21 readings for the day that were then applied to the 22 contemporary situation. It was always a very ingenious way. 23 I mean I think any preacher would want to have that ability to 24 be able to say, you know, here is scripture 2,000 years old 25 and it talks to this moment. WIPFLER - D 62 1 Q. The portion that we heard was that -- 2 A. It was that marvelous Biblical presentation about the 3 exodus and the return and how El Salvador is coming back from 4 its exodus, et cetera. 5 Q. And then there are other portions of his homilies 6 traditionally? 7 A. Yes, the two other parts are always the "catalog," as I 8 mentioned, I use that word, because that's exactly what it 9 was, of human rights violations, and then some conclusion that 10 was a moral demand or an ethical requirement or a statement 11 that said very clearly, so we, today, must act in a particular 12 way, because this is the Lord's command, et cetera. 13 Q. Father, I would like to play you the rest of Exhibit 14 number 92, which is an additional excerpt from that homily of 15 March 23, 1980. 16 A. All right. 17 Q. While this is setting up -- 18 (The excerpt was played as follows:) 19 "And something very horrible, very important, on this 20 same day, Thursday the 20th, the peasant man Augustín 21 Sánchez was found, still alive. He had been captured 22 by 15 soldiers from Zacatecoluca, who handed him over 23 to the Treasury Police. Sánchez, the peasant, in a 24 notarized declaration given before witnesses, that he 25 was captured from the El Cauca plantation in the WIPFLER - D 63 1 department of La Paz, when he was working on 2 affiliating members to the Salvadoran Communal Union, 3 Unión Comunal Salvadoreña. He was held for four 4 days, tortured without food or water, and with 5 constant beatings, asphyxiation, until the 19th of 6 March, when together with two other companions, they 7 were shot in the head, but luckily the bullet only 8 destroyed his right cheek and eye. Near death, he 9 was assisted by some peasants until a person of trust 10 would bring him to the capital. The peasant was 11 unable to sign this horrendous testimony because his 12 hands were crushed. This horrible scene was 13 witnessed by a person of recognized honor and there 14 are photographs that show the state in which this 15 poor peasant was picked up. 16 "We also have a still unconfirmed report of the 17 massive death of 25 peasants in San Pablo Tacachico. 18 At the last minute, before beginning Mass, the 19 confirmation of this terrible tragedy arrived. It 20 says that on Friday, the 21st of this month, a 21 military operation began from 6:00 in the morning on 22 the road from Santa Ana to San Pablo Tacachico. This 23 operation was carried out by soldiers from the 24 garrisons in Opico and Santa Ana together with the 25 Tacachico Treasury Police, who were even carrying the WIPFLER - D 64 1 names of the people that they had on their hit list. 2 In this operation, they raided the hamlets of El 3 Resbaladero, San Felipe, Moncagua, El Portillo, San 4 José La Coya, Mogotes, and their respective villages 5 Los Pozos and las Delicias. At the same time they 6 registered everyone who was traveling by bus or on 7 foot. 8 "In the hamlet of Mogotes, municipality of Tacachico, 9 the repression was crueler, for the troops of 10 soldiers used two tanks to instill terror in the 11 inhabitants of this sector. In the raid that 12 occurred, they stole four radios and 400.00 colones, 13 they burned the house and all the belongings of 14 Rosalío Cruz who, along with his family, have been 15 left in the worst misery. They killed Alejandro 16 Mojica and Felix Santos - the first at his place of 17 residence, the second in a dry ravine. Both left 18 wives and children who are now orphans. Due to fear 19 of repression, they were buried in their respective 20 yards. They also took away Isabel Cruz and Santos 21 Urquilla to an unknown destination. 22 "One final fact, with which we want to express a 23 special solidarity. Yesterday afternoon, the UCA, 24 the University of Central America, was attacked for 25 the first time and without any provocation. A large WIPFLER - D 65 1 military team undertook this operation at 1:15 in the 2 afternoon with the National Police. They entered the 3 campus shooting, and a student who was there studying 4 mathematics, Manuel Orantes Guillen, was killed. 5 They tell me that various students have also been 6 disappeared and that their relatives and the UCA are 7 protesting the raid of a campus whose autonomy should 8 be respected. What they have not done in the 9 National University, without doubt due to fear, they 10 have done in the UCA, during which the UCA has shown 11 that it is not armed to defend itself and this has 12 been an outrage without any motive. We hope to give 13 more details of this which is a serious mark against 14 civilization and the rule of law in our country. 15 "Beloved brothers and sisters, it would be 16 interesting to analyze, but I don't want to abuse 17 your time, what significance there is in these months 18 of a new government that precisely wanted to draw us 19 out of these terrible situations. And if what it 20 wants to do is leave headless the organization of the 21 people and obstruct the process that the people want, 22 no other process can thrive. Without its roots in 23 the people, no government can be effective, much less 24 so when it seeks to impose itself by the force of 25 bloodshed and pain." WIPFLER - D 66 1 BY MR. Van AELSTYN: 2 Q. Father Wipfler, was that the voice of Monseñor Romero that 3 you heard on March 23, 1980? 4 A. It was. 5 Q. Was that representative of the kind of catalog of human 6 rights abuses that he made a note of? 7 A. I'm sorry to say, that particular day, there was another. 8 And, somehow, in the excerpt, it disappeared. There were two 9 other examples that were given of the torture of a policeman 10 and the death of a -- I think it was a member of the National 11 Guard, by the opposition. And he -- he lamented that equally, 12 along with these other abuses, which were principally from 13 officials. 14 So the balance is lost because there was a real 15 balance that Sunday as well. 16 Q. It sounded like there was applause at the portion there. 17 Is that right? 18 A. Yes, I happen to come from a very traditional religious 19 community. And I was rather startled by the fact that about 20 ten times during the sermon -- it's only happened once to 21 me -- but ten times during his sermon, at least, he was 22 applauded. And people, as I said, were on their feet. And it 23 was an amazing thing to see that kind of a response occurring 24 throughout this sermon. 25 Q. And you mentioned that there was usually a third portion WIPFLER - D 67 1 of the sermon? 2 A. Yes. The third portion is always this kind of ethical 3 obligation that everyone has, this need to fulfill the law in 4 our time, the law being the moral law of Christ, and that was 5 always there at the end of the sermon. 6 Q. If I may, we will play now the concluding portion of 7 Exhibit 92. 8 (Excerpt played as follows:) 9 "I would like to appeal in a special way to the men of 10 the army, and in particular, to the troops of the 11 National Guard, the police and the garrisons. 12 Brothers, you belong to our own people. You kill our 13 own brother peasants; and in the face of an order to 14 kill that is given by a man, the law of God should 15 prevail that says, Do not kill! (Applause) No 16 soldier is obliged to obey an order counter to the 17 law of God. No one has to comply with an immoral 18 law. It is time now that you recover your conscience 19 and obey its dictates rather than the command of sin. 20 The Church, defender of the rights of God, of the law 21 of God, of the dignity of the human person, cannot 22 remain silent before so much abomination. We want 23 the government to seriously consider that their 24 reforms serve for nothing when they come bathed in so 25 much blood. WIPFLER - D 68 1 "In the name of God, then, and in the name of this 2 long suffering people, whose cries rise to heaven 3 each day more tumultuous, I beseech you, I beg you, I 4 command you in the name of God: Stop the repression! 5 "The church preaches your liberation just as we 6 studied it today in the Holy Bible. A liberation 7 that holds, above all, respect for human dignity, the 8 salvation of the common good of the people, and the 9 transcendence that looks above all else to God, and 10 from God alone derives its hope and its strength. 11 Let us now proclaim our faith in this truth." 12 BY MR. Van AELSTYN: 13 Q. Father Wipfler, do you recall being there that day? 14 A. I indeed do. 15 Q. And do you recall your reaction when you heard Monseñor 16 Romero speak those words at the end of his homily? 17 A. Yes. I turned to Mr. Quigley, who was sitting beside me, 18 and I said, "I don't think that the military is going to let 19 this one pass by." 20 We had talked about that whole issue of Nuremberg. 21 That was a conversation on the airplane and when we were going 22 down, and we had been talking about the fact that the whole 23 issue of guilt of the military is a very serious problem. 24 And later, immediately after this, I had said what I 25 said, that became another little issue of conversation before WIPFLER - D 69 1 we went into the press conference with the Archbishop. 2 Q. Before you went to the press conference, how did the 3 service on that Sunday conclude? 4 A. Immediately went to the Mass after the sermon, and it 5 proceeded as usual, but then I was rather startled by the fact 6 that the Archbishop, unlike other situations where there is a 7 large congregation, Communion is given to a number of priests 8 and Communion is received by people coming to the altar rail, 9 Archbishop Romero went out with several other priests, but he 10 was the only one that gave Communion. He gave Communion to 11 absolutely everyone in the congregation; it took more than a 12 half an hour. He walked through the church and gave Communion 13 to every single person in the church. I think a lot of them 14 would have felt cheated if it would have been by anybody else. 15 Q. How did that Communion portion of the service end? 16 A. This is a very hard part for me. He came back. Excuse 17 me. 18 Q. Take your time. 19 A. He came back from giving Communion. I am not a Roman 20 Catholic. I had not presented myself for Communion when 21 the -- when Mr. Quigley did. And I had my eyes closed. I was 22 praying for the Church and for the people. 23 And I heard a voice. And he said -- it was 24 Archbishop. He said, "Would you like to receive Communion, 25 Father?" WIPFLER - D 70 1 And I said, "Yes." And he gave me Communion. 2 And I was very moved. It was an incredible gesture, 3 in terms of doing it publicly. It was not part of the 4 tradition at that moment. 5 And I only realized later, when I was preaching a 6 sermon later that week at home, that I was the last person 7 ever to receive Communion from the Archbishop, because he died 8 before he finished the Mass the next day. And that's always 9 been a very important treasure in my life. 10 Q. After the service, what did you do? 11 A. We went from the Basilica proper into a very large 12 auditorium. And the thing that was quite surprising to me was 13 that he actually had a press conference in which he was 14 totally open to the press regarding everything he had said in 15 his sermon and other things that had happened during the week 16 and so on. 17 And it was a very powerful press conference, because 18 there was a lot of the pro government press present, and they 19 raised some very harsh questions with him insinuating a lot of 20 things about his political stance and so on. And I was very 21 moved by the ease with which, and the loving way in which he 22 responded to all their questions. It was a very calm 23 presentation of what he felt were the issues of justice that 24 needed to be presented. 25 Q. Could you turn again to Exhibit Number 100 in the larger WIPFLER - D 71 1 binder. 2 (A photograph was displayed of the Monseñor.) 3 I believe you have it on the screen in front of you. 4 A. Yes. 5 Q. Was this at that press conference? 6 A. Yes, that was at the press conference. 7 Q. And Exhibit 101, this was at the same press conference? 8 A. Yes, it was. 9 Q. Can you identify the persons in this photograph? 10 A. Yes. The person to the far right, I don't know who that 11 is, with his hands up in front of his face. 12 The person sitting in the white in the shirt next to 13 me, to my left, picture's right, is Mr. Quigley, Thomas 14 Quigley of the U.S. Catholic Conference, and I, and then 15 Archbishop Romero. 16 And, tragically, the person sitting next to 17 Archbishop Romero is Father Ignacio de Ellacuria, who was the 18 President of the University of Central America, and who was 19 murdered with -- along with the six Jesuits and their 20 housekeeper and her child in 1989. 21 And I must confess that when I took this picture out 22 to send it to you, I was suddenly shocked by the fact that 23 this is a picture of death in a terrible way, because the 24 poster on the wall up above is a poster of the six priests who 25 were murdered up to that day. Father Rutilio Grande up on the WIPFLER - D 72 1 left, but then the other five are all priests who had been 2 murdered, and Father de Ellacuria and the Archbishop. 3 Q. You mentioned that Monseñor Romero responded to these 4 rather aggressive questions from some of the reporters. How 5 did he respond? 6 A. Every one of his responses was kind of an -- he had this 7 amazing ability, and he had expressed it the day before as 8 well, this amazing ability to kind of place people in the way 9 he answered, place people in the context from which they 10 seemed to be making their statements. And he was willing to 11 be charitable about the fact that they came from a different 12 position than he did. 13 So he responded with great clarity and explained 14 things and there was no arrogance or aggressiveness on his 15 part as he answered. 16 Q. Did he back down from his call at the end of his sermon? 17 A. No. That was probably the main subject of that press 18 conference, and they asked him didn't he think that was asking 19 for treason and so on, and he was very firm on the fact that 20 the law of God is the supreme law and not the law of an 21 officer on the line. 22 Q. And after the press conference, what did you do? 23 A. We had lunch with him, and then following lunch -- and 24 that was, I must say, a relaxed, much lighter situation than 25 all of the preceding things. WIPFLER - D 73 1 And then we went on to visit other human rights 2 groups and we -- one, in particular, was very important. In 3 the afternoon, we went to a refuge that had been established 4 by the Archdiocese in a building which, after 24 years, I 5 think was an old school, a school that had been there. 6 And all the rooms had been converted into rooms with 7 cots and so on. And it was a refuge for people from the 8 countryside who were frightened out of the countryside by the 9 armed forces and who had lost family, some of them still 10 carrying terrible wounds. And a shipment of new people came 11 in that afternoon; two Sisters brought them to the refuge. 12 Q. Salvadoran nuns? 13 A. No. Both of them were U.S. nuns, Moira Clark and Dorothy 14 Kazel, who were murdered that year. And at the end of the 15 year, in December, four women, religious, were murdered by the 16 military and on their way back from the airport, and two of 17 them were the two of the women that we met. One was a 18 Maryknoll nun and the other an Ursuline nun. 19 Q. And they had brought some people in from the countryside? 20 A. Yes, in bad shape. 21 Q. Where did you go after the refuge? 22 A. I'm not certain, but I believe that was when we went once 23 again to try and meet with some of the people who were 24 involved in gathering documentation on the human rights 25 problems. WIPFLER - D 74 1 Q. You mentioned Socorro Jurídico before? 2 A. Yes. 3 Q. Is that one of the places you went? 4 A. We went there the next morning, on Monday, the 24th. And 5 because Roberto Cuellar, who was the director of Socorro 6 Jurídico, felt we needed to see the form in which they 7 maintained the documentation. 8 Q. And what was that form? 9 A. There were affidavits that were quite explicit, very 10 powerful affidavits. And written in some cases by people who 11 were the victims; in other cases, by their family members. 12 But the thing that was the most shocking -- I had 13 been doing human rights for a long time. I had never seen 14 such violent, grizzly, horrendous