U N R E D A C T E D 605 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ------------------------------------------------------- ANA PATRICIA CHAVEZ, CECILIA ) SANTOS, JOSE FRANCISCO ) CALDERON, ERLINDA FRANCO, AND ) DANIEL ALVARADO, ) ) Plaintiffs, ) ) VS. ) NO. 03-2932-Ml/P ) ) NICOLAS CARRANZA, ) ) Defendant. ) ------------------------------------------------------- TRIAL PROCEEDINGS BEFORE THE HONORABLE JON PHIPPS MCCALLA, JUDGE NOVEMBER 3, 2005 VOLUME IV BRENDA PARKER OFFICIAL REPORTER SUITE 942 FEDERAL BUILDING 167 NORTH MAIN STREET MEMPHIS, TENNESSEE 38103 606 A P P E A R A N C E S Appearing on behalf of the Plaintiffs: BASS BERRY & SIMS PLC 315 DEADERICK STREET, SUITE 2700 NASHVILLE, TENNESSEE 37238-3001 By: DAVID R. ESQUIVEL, ESQ. CAROLYN PATTY BLUM, ESQ. CENTER FOR JUSTICE & ACCOUNTABILITY 291 WEST 12TH STREET NEW YORK, NEW YORK 10014 MATTHEW J. EISENBRANDT, ESQ. CENTER FOR JUSTICE & ACCOUNTABILITY 870 MARKET STREET, SUITE 684 SAN FRANCISCO, CALIFORNIA 94102 Appearing on behalf of the Defendant: FARGARSON & BROOKE 65 UNION AVENUE 9TH FLOOR MEMPHIS, TENNESSEE 38103 By: ROBERT M. FARGARSON, ESQ. BRUCE BROOKE, ESQ. 607 W I T N E S S I N D E X WITNESS PAGE LINE JOSE LUIS GARCIA DIRECT EXAMINATION BY MR. EISENBRANDT: ................... 610 8 CROSS EXAMINATION BY MR. BROOKE: ........................ 650 18 IRMA CALDERON DIRECT EXAMINATION BY MS. BLUM: .......................... 673 8 CROSS EXAMINATION BY MR. FARGARSON: ..................... 686 7 FRANCISCO CALDERON DIRECT EXAMINATION BY MS. BLUM: .......................... 689 8 CROSS EXAMINATION BY MR. FARGARSON: ..................... 729 4 REDIRECT EXAMINATION BY MS. BLUM: .......................... 734 4 608 E X H I B I T I N D E X EXHIBIT NUMBER PAGE LINE Exhibit Number 11 Organic Law 611 8 Exhibit Number 12 Code of Military Justice 629 3 Exhibit Number 13 Photograph 703 2 609 1 THURSDAY MORNING & AFTERNOON 2 NOVEMBER 3, 2005 3 The jury trial in this case resumed on this 4 date, Thursday, November 3, 2005, at 9:10 o'clock a.m., 5 when and where evidence was introduced and proceedings 6 were had as follows: 7 8 ____________ 9 10 THE COURT: All right. I think we're ready to 11 proceed with the case. Yes, sir. Ready to proceed in the 12 case. Anything else? We can bring the panel in. 13 COURT SECURITY OFFICER: Yes, Your Honor. 14 (Jury in at 9:10 a.m.) 15 THE COURT: All right. You may be seated and 16 we can have the witness come back around, and our 17 interpreter. 18 MR. EISENBRANDT: May I proceed, Your Honor? 19 THE COURT: Yes, you may. 20 MR. EISENBRANDT: Thank you. 21 22 23 24 25 DIRECT - JOSE LUIS GARCIA 610 1 (Francis Icaza previously sworn to interpret 2 English into Spanish and Spanish into English.) 3 JOSE LUIS GARCIA, 4 was thereupon called as a witness on behalf of the 5 Plaintiffs, and having been first duly sworn, was 6 examined and testified as follows: 7 DIRECT EXAMINATION (CONTINUED) 8 BY MR. EISENBRANDT: 9 Q. Good morning, Professor Garcia. 10 A. Good morning. 11 Q. Sir, in the military, what is a chain of information? 12 A. Maybe it would be clearer to know how information flows 13 to explain how chain of command works. 14 Q. Go ahead and explain that to us, please. 15 A. I would like it, if you could, please, put up on the 16 projection the organic defense law where the chain of command 17 is clearly explained. 18 MR. EISENBRANDT: Your Honor, may I have 19 permission to approach the witness? 20 THE COURT: You may. 21 BY MR. EISENBRANDT: 22 Q. Sir, can you please tell us what the document is that I 23 just handed you? 24 A. It is the organic law for national defense of the 25 Republic of El Salvador which was in force at the time of the DIRECT - JOSE LUIS GARCIA 611 1 events that bring us to this trial. 2 Q. Is this the type of document that you and others in 3 your field of expertise would reply upon? 4 A. Yes. 5 MR. EISENBRANDT: Your Honor, we would request 6 to move this document into evidence as Exhibit 11. 7 THE COURT: So received. 8 (Exhibit Number 11 was marked. Description: 9 Organic Law.) 10 BY MR. EISENBRANDT: 11 Q. Sir, can you turn to the last page of that document, 12 please, and please tell us what that is on the last page? 13 A. On the last page, we see a national defense 14 organizational chart of which shows us how the command links 15 were organized in the year 1979 in the Republic of El 16 Salvador. If we look at the projection, we see that the 17 commander in chief of the armed force appears at the top of 18 the chart, is the highest authority of national defense. By 19 the time of 1979, the commander in chief of the armed force 20 must have been -- or must be the President of the Republic, 21 but let us not forget that the president had been overthrown 22 through a military coup, and he had been replaced by a junta. 23 This junta was comprised of two colonels and four civilians. 24 The law allows the president of the republic or whomsoever 25 should replace him to appoint as the commander in chief of the DIRECT - JOSE LUIS GARCIA 612 1 armed force to appoint a general, who would replace the 2 command functions of the President of the Republic. This 3 means the command, above all, is exercised with the type of 4 commander in chief of the armed force by the President of the 5 Republic by whomsoever replaces the president, in this case a 6 junta, and that command could be delegated upon a general, who 7 would be then be named general in chief or chief general. 8 Now, moving from there you can see a white line that traverses 9 downwards from commander in chief of the armed force. This 10 is -- the graph is slightly mistaken because the graph says 11 ministry of defense instead of minister of defense. 12 Q. Professor, let me ask -- perhaps I want to double 13 check, can we -- is it possible to put the Spanish up? 14 A. I apologize for my English, I made a mistake. This is 15 correct, the ministry of defense. 16 Q. Sir, feel free to refer to the copy you have in Spanish 17 there and then we will leave the English up for the jury. 18 A. So from the commander in chief of the armed force, you 19 see a line that comes out, you see this line means command 20 link. Below, we have the ministry of defense. The ministry 21 of defense is comprised by the minister and the undersecretary 22 of defense. These are the two persons that are in that line 23 of command. 24 Q. Sir, let me ask you when you say Undersecretary of 25 Defense, is that the same as saying Vice-minister of Defense? DIRECT - JOSE LUIS GARCIA 613 1 A. Yes, the term was used indistinctly. 2 Q. And in the year 1980, who was in the position of 3 vice-minister? 4 A. The position of Vice-minister was occupied by 5 Mr. Colonel Carranza. 6 Q. So, sir, according to this graphic, you have the 7 commander in chief, as you have explained through the ministry 8 of defense. Explain to us what the lines mean coming from the 9 ministry of defense down to the -- through the general staff 10 and to the six boxes below. 11 A. If you look at the chart, you will see from the 12 ministry of defense, a white line descends, and those lines 13 establish the dependence link. And you have the general staff 14 of the armed force. Under the charge of the general staff of 15 the armed force is the chief of the general staff of the armed 16 force, and from the chief of the general staff for the armed 17 force, you will see this line that drops and then broadens. 18 You have the army -- you will see the army, the air force the 19 national navy, the national guard, the national police and the 20 treasury police. And then you will see that these lines that 21 start at the commander in chief of the armed force establish 22 the -- they establish the command link between the commander 23 in chief of the armed force all the way down to the troops, 24 from the President of the Republic all the way down to the 25 troop units. With the exception of the President of the DIRECT - JOSE LUIS GARCIA 614 1 Republic, above whose authority there is nothing, and we go 2 down to the ministry of defense, you can see that the ministry 3 of defense falls under the president of the republic, and then 4 from the ministry of defense, we see the commander in chief of 5 the general staff of the armed force. And then from the 6 commander in chief of the general staff do depend then the 7 army, the air force, et cetera, which means that every -- all 8 of the people that are included in graphic has someone above 9 him who commands him, and below him those who obey him. This 10 is a military structure, and this allows the exercise of 11 command and also the exercise of the responsibility that this 12 means, keeping in mind that one is always responsible to one's 13 superior, and one must demand the compliance with one's orders 14 by one's subordinates. It's almost impossible, for example, 15 the minister of defense to come down here and see and find out 16 what is happening to a particular soldier in the national 17 guard, and that's why you have the chain of command, because 18 it normally takes place at level of the national guard, a 19 soldier of the national guard has committed a breach of the 20 law, and I am the minister of defense, immediately as soon as 21 I -- if I find out that the inconvenience, the crime, whatever 22 it is that has taken place, and that's -- this information has 23 not arrived to me through these lines of command and that no 24 one here at the level of the national guard has made -- taken 25 any measures to make sure that this type of violation receives DIRECT - JOSE LUIS GARCIA 615 1 its punishment, the road that is followed in any armed force 2 is that the minister of defense queries the commander in chief 3 of the general staff, tell me what happened with that soldier 4 in the national guard, and you will submit a report in a 5 certain specific frame time. Commander in chief of the 6 general staff of the armed force then speaks to the commander 7 in chief of the national guard and says to him, a soldier in 8 the national guard is accused of such and such a thing, in a 9 specific period of time you will submit a report and tell me 10 what has happened and what you have done to resolve that 11 problem. The chief of the national guard -- you see, I have 12 gone from the top all the way down to a specific soldier. The 13 chief of the national guard will then speak to the chief of 14 the subunit where the soldier has been deployed, and he 15 queries him on what has happened and what measures have been 16 taken to solve the problem. 17 Q. Professor -- 18 A. I'll finish with but one phrase. 19 Q. Go ahead. 20 A. You see, the responsibility is exercised at each one 21 level, and that at each level, we have that each one of them 22 is responsible, first, to find out what happened and then to 23 determine what measures have been taken in order to correct, 24 and if those measures have been executed and if this accused 25 party is, in fact, guilty or not. And if at any one of these DIRECT - JOSE LUIS GARCIA 616 1 levels of command -- and if at any one of these levels of 2 command the responsible party, the commander has failed in his 3 duty to find out, to take responsibility for the actions, then 4 the office, the office immediately above that finds out that 5 these measures have not been taken must then exercise his 6 command and bring to play his disciplinary attributions. At 7 every level, at each level there are disciplinary attributes 8 that establish the jurisdiction, which is what it is called, 9 for each one of the members of this chain in order to maintain 10 discipline, which we said yesterday was the -- is the backbone 11 of any military organization. And that allows us as military 12 people to walk about armed in an unarmed society and 13 differentiates an armed force from a band of bandits. 14 Q. Sir, through this chain of command that you have 15 described, what should a commander do if a subordinate -- if 16 he finds out that a subordinate has tortured a prisoner? 17 A. He must bring to play at any one of the levels that you 18 see on the chart information in the command chain, and we see 19 that the requirements goes from top to bottom, and from the 20 bottom, up comes the information. First, he must inform 21 himself of what has taken place. Once I, at any one of these 22 levels of the chain of command, I am made -- it is made known 23 to me that there has been the commission of an infraction, it 24 could be a crime, it could be a breach of discipline, I 25 take -- I put my attributes, my capacities into movement, the DIRECT - JOSE LUIS GARCIA 617 1 attributions that the Military Code of Justice assigns to me 2 at my hierarchical level. If it is a crime, it can go to a 3 court's marshal. If is a disciplinary breach, I have 4 disciplinary attributes that allow me to apply a series of 5 punishments to these infractions. 6 Q. Would torture be considered a crime as you just 7 mentioned? 8 A. Yes, it is a crime, of course. 9 Q. Would it be the same if a subordinate killed a 10 civilian? 11 A. Yes, of course, upon that, the Salvadoran constitution 12 already speaks, it is not even the Military Code of Justice. 13 Article 177 of the Salvadoran constitution authorizes the 14 ministry of defense to establish an urgent court marshal if 15 you can call it that at any place within the Republic to try 16 not only military people, but also civilians who may have 17 committed crimes against human rights, thus jeopardizing 18 security of the state. These are extremely broad attributions 19 that are established in order to maintain the rights of people 20 as I also know. But the minister of defense is authorized to 21 apply these measures in order to make sure that no one is 22 going to have the authority to -- no one is going to have the 23 right to abuse the people. 24 Q. Sir, does a commander have any duties in terms of 25 training subordinates? DIRECT - JOSE LUIS GARCIA 618 1 A. Yes, and we're speaking of different responsibilities 2 in this matter according to the place held or position held in 3 each chain of command. Commanders always exercise through the 4 people that depend or the four under one when one is an 5 officer of high rank. I'm the Vice-minister of Defense and I 6 am the ministry of defense. I am not the person in charge of 7 informing the subordinates concerning the -- I'm not in charge 8 of the training of soldiers concerning how they must respect 9 human rights, but I am responsible for overseeing and in 10 showing that through all of those lines of command. In this 11 specific case, we're talking about the Vice-minister of 12 Defense. I have to insure that the commander in chief of the 13 general staff of the armed force has taken the measures to 14 insure that instruction is imparted at the Army, at the air 15 force, et cetera, et cetera. And each one, depending on your 16 level of hierarchy, has the duty to oversee that that 17 instructional training plan that I have ordered be complied 18 with or enforced at all of the command levels. Those are the 19 attributions of command, to give orders and to oversee their 20 compliance or enforcement, because otherwise anyone can do 21 anything. 22 Q. Sir, do you still have Exhibit 10 in front of you, the 23 ordinance? 24 A. Yes, I have it here. 25 Q. Okay. Could I ask you to look at Article 9 of the DIRECT - JOSE LUIS GARCIA 619 1 ordinance, please? I'm sorry, not the national defense Law. 2 MR. BROOKE: Exhibit 10. 3 MR. EISENBRANDT: Yes, Exhibit 10. 4 A. Article 9? 5 Q. Yes. Let's wait just a minute so we can put that up on 6 the screen for the jury. Paragraph three. Sir, can I ask you 7 to read the third paragraph there, the final paragraph, 8 please? 9 A. The third? 10 Q. Yes. 11 A. The superior shall also be responsible for violations, 12 abuses and misbehaviors that results from his negligence or 13 weakness in overseeing the behavior of his subordinates. This 14 is what I tried to explain up until this time. 15 Q. So when it is a violation to the abuses and 16 misbehaviors, would that include torture of a prisoner or 17 killing of civilians? 18 A. Yes. 19 Q. Generally speaking, sir, what are the duties -- you've 20 described the duties of a commander, what are the duties of a 21 subordinate? 22 A. A subordinate has duties and rights. Amongst the 23 duties is to comply with all legal orders as issued by his 24 superior. 25 Q. Now, when you say legal orders, what does that mean? DIRECT - JOSE LUIS GARCIA 620 1 A. It means that they should not be against the 2 Constitution or other established law. 3 Q. So let me bring up Article 9 again and ask you to read 4 the first paragraph of Article 9. 5 A. Article 9. Legal orders of superiors must be executed 6 by subordinates, without remark or complaint of any kind, 7 without hesitation or murmur; yet they may complain in the 8 event there were cause for doing so, after they have carried 9 them out. This excludes that they may be an illegal order 10 because the only orders that can be obeyed are legal orders. 11 I can level a complaint, as this article says, as a 12 subordinate if I feel that that -- the execution of that order 13 places the structure that I belong to in jeopardy or that it 14 does not comply with the objective of the mission, but it 15 under no circumstances means that I can comply with an illegal 16 order, because it clearly states here that you only comply 17 with those orders that are legal. 18 Q. When you say legal, does that imply that subordinates 19 would have to follow the national laws and the national 20 Constitution? 21 A. Yes. 22 Q. Does that mean that subordinates have to follow -- 23 MR. FARGARSON: Your Honor, I -- 24 THE COURT: Objection sustained, leading. 25 BY MR. EISENBRANDT: DIRECT - JOSE LUIS GARCIA 621 1 Q. What are subordinates' duties in terms of human rights 2 treaties that we discussed yesterday? 3 A. They have all of the obligations that emerge from the 4 statement and the contents of international and national law 5 that protects all citizens from all types of abuses that go 6 against the dignity of human people. 7 Q. Did these particular obligations apply in El Salvador 8 in 1980? 9 THE INTERPRETER: The interpreter requests that 10 counsel repeat the question. 11 BY MR. EISENBRANDT: 12 Q. Did these obligations apply in El Salvador in 1980? 13 A. I must say that, unfortunately, they were not complied 14 with, and I can explain what was happening. 15 Q. First, let me ask you: Were they in effect in El 16 Salvador in 1980? 17 A. All of the laws were in effect, the empire or the ruler 18 of the Constitution was never suspended. There are 19 dictatorships that establish a special regime that is above 20 the Constitution, such as, unfortunately, took place in my 21 country, but in El Salvador, the Constitution was never not in 22 effect. 23 Q. Sir, can I ask you to look again at the command chart 24 of the national guard slot? 25 A. I have it here on the screen. DIRECT - JOSE LUIS GARCIA 622 1 Q. Sir, you have already walked us true through this, but 2 where does this particular chart come from, where is it found? 3 A. This is an annex to the organic law for national 4 defense of the Republic of El Salvador, and that establishes 5 the command links that govern the functioning of the armed 6 force in the year of 1979. 7 Q. As -- did it in 1980 as well? 8 A. Yes. 9 Q. Can I ask you to look at Article 375 of the ordinance, 10 please? Just a minute, let's give the jury a chance to see 11 it. Okay. Go ahead and read that, sir. 12 A. Article 375. It shall be proof of lack of spirit and 13 ineptitude in command, for any commanding officer who commands 14 others or who is alone at the head of a troop, to say that he 15 was unable to contain the troop under his command: That he 16 alone could not control so many, as well as other statements 17 expressed with the purpose of excusing himself for the 18 excesses of his people or for his cowardice in war action, 19 since, he who is in command, from the moment he takes control 20 of his troops must jealously enforce obedience in all matters 21 and inspire valour and disdain for risk. 22 Q. Sir, I would like to talk to you specifically about the 23 ministry of defense. Can you please look at Articles 36 and 24 37 of the law of national defense. 25 A. Of the organic law you said? DIRECT - JOSE LUIS GARCIA 623 1 Q. Yes, sir. 2 MR. EISENBRANDT: Your Honor, may I approach 3 the witness to help him find the article? 4 THE COURT: You may. 5 BY MR. EISENBRANDT: 6 Q. Can you read Article 36 right now? 7 A. Yes. Article 36 states the ministry of defense of 8 Defense is comprised by the minister of the branch, the 9 undersecretary of defense and by the departments as considered 10 by the respective regulation. 11 Q. And in 1980, who was the Undersecretary of Defense in 12 El Salvador? 13 A. Colonel Carranza. 14 Q. Sir, what does this say about the duties of the 15 Undersecretary of Defense within the ministry of defense? 16 A. The Undersecretary of Defense has the duties and the 17 attributes that the law confers upon him. It all starts with 18 the political Constitution, and the political Constitution 19 says that the Undersecretary of Defense, along with the 20 minister of defense, are the officers who through their 21 signature give validity to the orders and degrees and other 22 measures that the president establishes concerning the 23 function of their specific area and that they are responsible 24 and that the minister and the undersecretary are responsible, 25 and it states it in those terms, for the consequences of those DIRECT - JOSE LUIS GARCIA 624 1 measures that they have signed, along with the President of 2 the Republic, and that that responsibility does not conclude 3 with the mere act of opposing the measure unless they have 4 resigned to their position prior. Let me show you. That's 5 Article 75 of the Constitution, which associates the 6 responsibility for the high command with the minister and the 7 undersecretary concerning all of the orders, all of the 8 measures, all of the agreements that regulate the functioning 9 of the armed force, and you will see that in addition, Article 10 77 says it is the minister and the undersecretary are 11 solitarily responsible for whatever they authorize under their 12 hand. 13 Q. Sir, let me ask you then -- let me ask you then to read 14 Article 37 then of the national defense Law. 15 Sir, let me stop you there and let him translate. 16 A. Article 37. The ministry of defense is instituted for 17 the following purposes: 18 1. To develop the national defense policy as pertains 19 to the fundamental principles by which the action of the armed 20 force must be inspired, towards the achievement of the 21 political objective of the Republic. 22 Q. Sir, let me ask you, in paragraph one where it says to 23 develop national defense policy, what does that mean, explain 24 that to us. 25 A. That means that the ministry is responsible to turn DIRECT - JOSE LUIS GARCIA 625 1 into action all of the resolutions or orders issued by the 2 Presidency of the Republic concerning the functioning, the 3 organization, et cetera of the armed force. This places this 4 organization, the ministry, at the head of the entire armed 5 force of the Republic, responsible for everything that is done 6 or what is not done throughout all of the levels of command. 7 Q. Sir, let me ask you to read paragraph three of Article 8 37. 9 A. Paragraph 3, to provide technical advice to the 10 President of the Republic and commander in chief of the armed 11 force in matters of national security and public safety. 12 Q. What does technical advice mean? 13 A. For a military man, the technical side is to know -- is 14 to know the functioning of all of the structures that are -- 15 that comprise an armed force, from the highest levels all the 16 way down to the functioning of the lower -- lowest levels of 17 the organization. 18 Q. Sir, in looking again at the command chart, would you 19 please tell us, the national guard, national police and 20 Treasury Police that are there at the bottom, can you please 21 explain to us what those entities do? 22 A. In principle, they act -- well, they have a double 23 function based on the law. In principle, they actually act 24 and look at each unit individually. The national guard is 25 primarily in charge of the surveillance and border protection. DIRECT - JOSE LUIS GARCIA 626 1 That is a basic function of that organization. Secondarily, 2 they must collaborate in everything that is -- everything that 3 is concerned with public order within the structure of the 4 Republic, and were it necessary to have -- to have within its 5 structure other organizations to operate as an armed force. 6 That is why they are part of the armed force. 7 The national police has the normal functions of any 8 police force, they are auxiliaries to justice, they maintain 9 public order, they perform arrests and take delinquents to the 10 judges, the normal functions of any police force. And in 11 accordance with their structure, they must also have tools 12 that will allow them to fight as an armed force in order to 13 cooperate with the rest of the force in the event of a foreign 14 aggression or in the event of an internal insurrection. 15 The treasury police, whereas by law, this is not a 16 public security force as we previous -- this unit collaborates 17 by making sure that the measures concerning the taxes are 18 under control and apply, and they also -- they are also 19 involved in the prevention of smuggling and with everything 20 that the treasury is in charge of, and they also work as an 21 auxiliary to the justice system. But the law also orders them 22 to have the tools necessary that allow them to fight as an 23 armed force. In fact, these three organizations did act as an 24 armed force in the war that was known as the Football War 25 against the Republic of Honduras. So they had war experience DIRECT - JOSE LUIS GARCIA 627 1 during the time in which we are analyzing their functioning. 2 Q. Professor, I would like to talk to you specifically 3 about the office of Vice-Minister of Defense in 1980. Can I 4 ask you to look at the ordinance again, at Article 141? 5 A. I have it here. 6 Q. Please read it, sir. 7 A. Article 141. The Undersecretary of Defense is the 8 immediate assistant to the minister of the branch whom he 9 shall replace in all cases of absence. He shall control the 10 various offices of the ministry and he shall act in all 11 matters assigned to him by the Minister. 12 Q. What kind of command authority is required of the 13 Undersecretary of Defense to replace the minister of defense? 14 A. That is included within the Code of Military Justice 15 where it speaks of authority, of jurisdiction and 16 responsibilities of the jurisdictional command. When the 17 Military Code of Justice speaks to the issue of what is a 18 superior, it says that he has to meet three conditions or some 19 of the three conditions. The first that he be, in fact, 20 exercising the command assigned to him. 21 Second, that he should be second in command and ready 22 to replace the superior when required. 23 And the third is based on the nature of the rank he 24 holds. I have -- as a colonel, as a colonel in the armed 25 force of El Salvador, I have the authority that my rank DIRECT - JOSE LUIS GARCIA 628 1 assigns to me regardless of the position that I hold. Now, 2 the superiority that I have over the entire military structure 3 happens if I am given jurisdiction over the different elements 4 of the armed force. And this jurisdiction over the force 5 empowers me to, in short, compliance and oversee compliance. 6 And in that sense, the Military Code of Justice under Article 7 168 says specifically that the only parties authorized to 8 impose disciplinary punishment upon officers are the Minister 9 and the Undersecretary of Defense. Specifically, it provides 10 them with this authority in light of the gravest breach that 11 an officer can commit, and that punishment is the revocation 12 of command. 13 Q. Sir, let me stop you there. 14 MR. EISENBRANDT: Your Honor, may I have 15 permission to approach the witness? 16 THE COURT: You may. 17 BY MR. EISENBRANDT: 18 Q. Professor Garcia, can you tell us what that document 19 that is that I just handed you? 20 A. It is the Code of Military Justice. 21 Q. Is this the type of document that you and others in 22 your field of expertise in military structures would rely 23 upon? 24 A. Yes. 25 MR. EISENBRANDT: Your Honor, I would ask to DIRECT - JOSE LUIS GARCIA 629 1 move this into evidence as Exhibit 12. 2 THE COURT: So received. 3 (Exhibit Number 12 was marked. Description: 4 Code of Military Justice.) 5 BY MR. EISENBRANDT: 6 Q. Sir, can you read Article 186 for us, please, of the 7 code? 8 A. 186. The application of disciplinary punishments, in 9 cases having to do with violations committed by officers falls 10 upon: 11 1. The Minister and Undersecretary of Defense. 12 2. The Corps commanders, and 13 3. The commanders of Military Offices. 14 Termination of employment, as disciplinary punishment, 15 may only be imposed by the Minister or Undersecretary of 16 Defense. 17 Q. Sir, that final sentence, what is the implication of 18 that for the Undersecretary of Defense? 19 A. The explanation is that the law, education, it speaks 20 of the attributes of a superior. He's the superior because 21 he's the second in the chain of command which we have 22 established already the three conditions, and he's a colonel, 23 so as a superior, this provides him with authorization to make 24 that superiority or putting into movement for the compliance 25 of all legal orders and the laws and regulations of the DIRECT - JOSE LUIS GARCIA 630 1 Republic of El Salvador that the members of the armed force 2 must comply with, and this, therefore, vests upon him the 3 military jurisdiction, through this article, the authority to 4 impose disciplinary punishment upon officers within the 5 structure if they have not complied with or if they have 6 allowed that their subordinates not comply with, and in the 7 greatest cases, it gives him the responsibility, to him and to 8 the Minister to impose the gravest punishment that an officer 9 can receive, which is termination of employment. 10 Q. What type of punishment would be correct for torture of 11 a prisoner or killing of a civilian? 12 A. This is now a crime. So far, we have been speaking of 13 disciplinary breaches, and I would like to give a small 14 explanation, short explanation because I understand that for 15 the jury this must be at the highest levels of military 16 management, maybe a little bit difficult. In the military 17 organization, any military organization in El Salvador, in my 18 country, anything that is a crime or any military breach are 19 corrected by the application through the application of a 20 military -- of a Code of Justice, specifically Military Code 21 of Justice, so when its breaches of discipline or they are 22 specifically military crimes, such as rebellion or cowardness 23 in the face of the enemy, all of these military breaches, all 24 military personnel are judged through court's marshal or they 25 receive disciplinary punishment if these have been committed DIRECT - JOSE LUIS GARCIA 631 1 crimes. The violation of a human right is a violation that is 2 beyond the military jurisdiction. This is a violation that is 3 managed based on the laws of the country. So I, as a military 4 commander, if I discover that a human right has been violated 5 against a person and it has been done by a member of the armed 6 force, I then have the obligation as a superior officer to 7 appoint a military officer so that he may create a case file, 8 and this case file should be drafted immediately, investigate 9 where the crime was committed, what the circumstances of the 10 crime were, what the person involved alleges, what witnesses 11 allege, and the conclusions from the summary of that 12 investigation that I perform within military jurisdiction then 13 go to a civilian court, because this is not a military crime, 14 this is a crime of general nature. I don't know if I have 15 been clear on this, but we military people, we are ruled by 16 a -- concerning crimes and violations by our own military 17 code, but if the crime is attempt to kill, to rape, this is 18 not a military crime, it's a crime. So my obligation as a 19 military officer if it takes under my structure is to order 20 that an investigation take place immediately and that 21 investigation, that file, once it has been submitted to me at 22 the ministry of defense, turned over -- is then turned over to 23 the civilian authorities so that the formalities of law can 24 then be enforced. I don't know if I have been clear. 25 Q. Yes, sir. Let me ask you a specific example. If a DIRECT - JOSE LUIS GARCIA 632 1 member of the national police committed torture or killing of 2 a civilian, what should the Undersecretary of Defense do, the 3 Vice-minister of Defense? 4 A. If that news gets to or I find a crime has been 5 committed by -- did you say national police? 6 Q. Yes. 7 A. I have to place the chain of command in movement, which 8 as we explained at the beginning, goes from the top down, and 9 I must ask if I'm the Undersecretary of Defense, the commander 10 in chief of the general staff of the armed force what happened 11 there at the national guard, that I'm seeing it in the 12 newspaper or I'm getting this information. If the commander 13 in chief of the general staff knows that it took place, he has 14 to tell me how that event has been punished; and if he doesn't 15 know, he'll say to me I'm going to investigate. I will give 16 him a timeframe, I'll tell them you have 48 hours to provide 17 me with a report. So the commander in chief of the general 18 staff of the armed force then speaks to the Director of the 19 national police and requests a report from that commander of 20 what has happened at the national police where this or that or 21 the other is said to have taken place, and then I'll give him 22 24 hours to submit a report. We're talking about something 23 grave, we're talking about the violation of human rights, if 24 there is a crime that is stipulated to in the Constitution, so 25 the Director of the national guard starts an investigation, DIRECT - JOSE LUIS GARCIA 633 1 opens a file. It's a crime, and the results of this must all 2 end up at the level of the civilian justice. He orders the 3 creation or the performance of the investigation, and up the 4 chain of command, he sends this to the commander in chief of 5 the general staff who may or may not make any remarks or 6 observations to that investigation, and it will come to me at 7 the ministry of defense, and I will check and see if the 8 conclusions are correct. And I look at the considerations by 9 the signing officer, and I thus submit it to the corresponding 10 court so they can go ahead with their own investigation and 11 punishment. In word, I comply with the law. This is my 12 obligation as a superior officer to enforce and comply with 13 the law. 14 Q. If the report coming up through the chain of command 15 found that torture had been committed by a subordinate in the 16 national police, what should the Undersecretary of Defense do? 17 A. First thing that has to be done is what we've 18 described, the investigation has to take place and send it off 19 to the civilian justice authorities. But according to my 20 authority as a commander and my responsibility to prevent this 21 from repeating itself, I have a series of actions according to 22 my rank, according to my command responsibility that I can and 23 must enforce. But I would also like to place myself in 1979 24 when the events take place, because that's the operational 25 environment, as we say, as military personnel would say. At DIRECT - JOSE LUIS GARCIA 634 1 what time and under what circumstances did these events take 2 place. Remember, a group of young officers in El Salvador, 3 and this is in 1979, decide to do away with the torture, the 4 violations and all types of human degradations that were 5 committed by the institution, and for this end, they effect a 6 coup detat, and thus they overthrow the President of the 7 Republic, they kick out and fire all of the generals that were 8 working within the armed force and that group of -- and that 9 group of young officers decide, and they do this through a 10 proclamation, a famous proclamation that is issued in 1979. 11 There's -- that as of that time, the army is going to be at 12 the service of rather than against the people of El Salvador, 13 and they're going to create a structure where they're going to 14 share things with a group of civilians within the junta, and 15 that in order to direct or command the newer armed force, they 16 are in search of the officers that for them represented a 17 guarantee of compliance, compliance of what was established 18 within that proclamation. That is how they search Colonel 19 Garcia -- not me, but the one you mentioned earlier -- and 20 Colonel Carranza, who were officers with an enormous degree of 21 prestige within the institution. Colonel Carranza, who is 22 sitting over there, he was always the first at all of the 23 structures in his military career, he deserved and got all of 24 the respect from his subordinates. He was selected to come 25 here to the United States to go to courses. He was selected DIRECT - JOSE LUIS GARCIA 635 1 to go to the Superior War College of Mexico, and when the coup 2 takes place during the first week, he is appointed as the 3 commander in chief of the general staff of the armed force, 4 but since they wanted to give him an even higher status, they 5 set him up as the Deputy ministry of defense, along with 6 Colonel Garcia, who was also an officer with enormous prestige 7 as the minister of defense. And so to create the junta, they 8 assigned two colonels also with great prestige. These were 9 Colonels Gutierrez and Colonel Majano who had the functions of 10 the executive power along with the other civilians who were 11 members of the junta. So the revolution begins with two 12 colonels exercising the executive power along with four 13 civilians. One of them is appointed the commander in chief of 14 the armed force. First, it was Majano and then it was 15 Gutierrez. But the armed force begins to function as of the 16 level of ministry of defense as we have established 17 previously, and the specific military function, independent of 18 the political function that was all the way up there at the 19 junta, this is given to these two colonels who deserved the 20 trust by the younger officers, because they were convinced 21 that these two gentlemen were going to bring the house to 22 order and make the military organization function as it was 23 supposed to. But you listened to the Ambassador of the United 24 States who came to speak at this trial who told us that at the 25 highest level, at the political level, two trends faced off, DIRECT - JOSE LUIS GARCIA 636 1 one that said that in order to do away with the abuses, et 2 cetera, et cetera would be represented by Colonel Majano, and 3 the other said that in order to do away with all of these 4 demonstrations, we would have to apply what is known as 5 militarism. Any demonstration, beat it with sticks. These 6 are two positions that are completely different. One says 7 let's change the social order in order to stop the problems, 8 and the other said that in order for there to be no 9 demonstrations to not let the unions organize, then we apply 10 repression. 11 Q. Professor, did you hear Ambassador White talk about the 12 high command? 13 A. Of course. 14 Q. Can you tell us according to your knowledge who is in 15 the high command in 1980, what positions and what people? 16 A. The high command, according to what the law 17 establishes, is comprised by the commander in chief of the 18 armed force, the ministry and the undersecretary of defense 19 and the commander of the general staff of the armed force. 20 These four gentlemen were the high command of the armed force. 21 Q. And what is the purpose of the high command? 22 A. The high command must be the collection of the highest 23 ranking officers in the military organization, who are 24 responsible for the organization and the functioning, pursuant 25 to the laws of the entire military structure. Each one of DIRECT - JOSE LUIS GARCIA 637 1 them has a specific responsibility of command. 2 THE COURT: We probably need to take our break 3 at this time. We will have a 15-minute break. We will 4 come back and resume in 15 minutes. 5 THE CLERK: All rise. This Honorable Court 6 stands in recess for 15 minutes. 7 (Recess taken at 10:30 a.m. until 10:45 a.m.) 8 (Jury in at 10:45 a.m.) 9 THE COURT: All right. You may be seated. 10 Counsel may proceed. 11 MR. EISENBRANDT: Thank you, Your Honor. 12 BY MR. EISENBRANDT: 13 Q. Professor Garcia, before the break, you were discussing 14 the split in the Salvadoran military into two groups. Can you 15 tell us which -- in which group Colonel Carranza was? 16 A. I agree with the explanations and the statements by the 17 Ambassador who has more than an opinion, has direct knowledge 18 of what was going on. He explained that Colonel Carranza -- 19 MR. BROOKE: Objection, Your Honor. 20 THE COURT: Objection sustained, since it would 21 simply repeat the testimony of a prior witness, and it 22 would be hearsay. 23 BY MR. EISENBRANDT: 24 Q. Professor Garcia, what is your personal understanding 25 of the situation in El Salvador in terms of the split you DIRECT - JOSE LUIS GARCIA 638 1 described between the military? 2 A. In El Salvador, that revolt by the younger officers 3 attempted to change the regime, the famous instituted regime 4 of the 14 families, but this affected long-term vested 5 interests, and so pressure on the military sector was 6 immediately felt as soon as the revolution started. 7 Unfortunately, the hard mans of the armed forces took sides 8 for those who defended the interests of the 14 families, and, 9 therefore, the struggle was established between a group of 10 officers who formed part of what was called the group that 11 controlled the revolutionary process which operated together 12 with the power. They were all young officers who only found 13 Colonel Majano on their side, and the conflict then was 14 established between two sectors. And the armed force 15 little-by-little went back to the previous activities. In 16 time, Colonel Majano was separated from his position and the 17 rest of the officers who formed part of the command were taken 18 out of their positions or sent abroad as military attaches so 19 that they would not interfere with the process. And, of 20 course, this caused an explosion of violence among the 21 population, which was unprecedented because they were 22 frustrated. They expected revolution to change all things, 23 but instead of changing them, they were not only maintained, 24 but rather exacerbated. And the pretext was the same one as 25 we have seen throughout Latin America with the dictatorships DIRECT - JOSE LUIS GARCIA 639 1 that covered it. The struggle against communism, anyone who 2 felt some kind of sympathy for the poorest classes was called 3 a communist. 4 MR. FARGARSON: Your Honor, excuse me, may we 5 approach up there just a moment? 6 THE COURT: Certainly, you may. 7 (The following proceedings had at side-bar 8 bench.) 9 MR. FARGARSON: Your Honor, I could be wrong, 10 but I thought this witness was not a witness to give 11 history and to be an expert on history, but to testify 12 about the military and to give evidence about the military 13 order, and now he's going off into being an expert on not 14 only history, but the history of Latin America and other 15 areas, so we object. 16 MR. EISENBRANDT: Your Honor, I understand that 17 the witness can't pontificate on subjects too far away. I 18 do think in order to be able to talk about the Salvadoran 19 military structure, you have to be able to refer to a 20 situation in the country at the time and the status of the 21 military in order to locate the defendant within that 22 structure. And I intend to -- 23 THE COURT: If you confine it to that, that 24 would be good. I think we're getting a little far afield. 25 It does need to be contextualized, and I understand that, DIRECT - JOSE LUIS GARCIA 640 1 because he's not testifying in a vacuum, he's testifying 2 about the structure within a context, but it needs to 3 be -- 4 MR. FARGARSON: Shortened and to the point and 5 not all over the map. 6 MR. EISENBRANDT: Your Honor, I -- 7 THE COURT: Generalized statements about events 8 and the world -- 9 MR. BROOKE: Honduras. 10 MR. FARGARSON: And so there will be no 11 misunderstanding further, so that he doesn't start 12 commenting on what Ambassador White said to try to 13 interpret or bolster -- 14 THE COURT: I sustained that. 15 MR. FARGARSON: But he mentioned that two 16 times, so hopefully no more of that. 17 THE COURT: Well -- 18 MR. EISENBRANDT: He -- 19 THE COURT: We need a little more guidance 20 there. 21 MS. BLUM: I think he has kind of a 22 professorial style as a professor -- 23 MR. EISENBRANDT: I intend to bring him back. 24 MR. FARGARSON: We all agree to that. 25 THE COURT: I sustain the objection in the DIRECT - JOSE LUIS GARCIA 641 1 sense that you need to get more focused and stay within 2 the bounds of the general area of discussion. 3 MR. FARGARSON: True. 4 THE COURT: I sustain the objection. 5 (The following proceedings had at side-bar 6 bench.) 7 THE COURT: I sustained the objection. The 8 testimony is to be limited to the structure of the 9 Salvadoran military and the obligations of the military 10 commander. While certainly it can be discussed in a 11 context of events within El Salvador, it is not to go 12 beyond the area in which the witness has been qualified as 13 an expert, so we have discussed that, and I will allow you 14 to redirect the question. 15 MR. EISENBRANDT: Thank you, Your Honor. 16 BY MR. EISENBRANDT: 17 Q. Professor Garcia, within the split within the military 18 structure that you were describing, where did Colonel Carranza 19 fall? 20 A. He was on the side of those who wanted to maintain the 21 status quo. 22 Q. Professor, can I ask you to look at the national 23 defense Law again at Article 26, please? 24 MR. EISENBRANDT: Your Honor, may I approach 25 the witness? DIRECT - JOSE LUIS GARCIA 642 1 THE COURT: Yes, that's fine. 2 BY MR. EISENBRANDT: 3 Q. Professor, can you please read Article 6 just through 4 the first point there? I'm sorry, 26. 5 A. It speaks to the duties of the Director of the national 6 defense, and it reads, Article 26. It is the responsibility 7 of the Undersecretary of Defense to provide technical advice 8 to the minister of defense in all matters concerning the 9 branch. 10 Q. Professor, earlier, with regard to Article 36, you 11 described technical advice, can you please tell us how that 12 would apply here in this article? 13 A. Technical advice consists on being able to express 14 opinions, to advise or to order operations of the different 15 elements that form part of the structure of the armed forces. 16 Here it reads: In all matters concerning the Branch, the 17 Branch being the whole group of elements forming part of the 18 armed forces, in order for me to be able to provide technical 19 advice or assessment, we saw that graph earlier listing all 20 the organizations within the armed forces, it is necessary for 21 me to know how they operate, to know how they are managed, to 22 know how they are operating, to know what are the capabilities 23 of each one, I should then intervene directly in order to be 24 informed, and I should order all the elements of the structure 25 to report to me information that will allow me to fulfill this DIRECT - JOSE LUIS GARCIA 643 1 technical duty to the ministry of defense. 2 Q. What sorts of obligations would the Undersecretary of 3 Defense have to obtain information? 4 A. I must have the capacity or capability of traveling to 5 any branch of the forces to observe the operation, to 6 interrogate its components, to see them operate in the field, 7 to take some corrective measure, if necessary, which means 8 that I must have the capacity for handing down orders in order 9 to make sure that the mission is being accomplished, and I 10 must also report to the Minister who has political 11 responsibilities with the army command as to how this 12 structure is operating and these opportunities granted upon me 13 by this very article. As a superior, as we said earlier, I 14 have the authority and I have the disciplinary elements at my 15 disposal to apply those to any officer who may not be 16 fulfilling or complying with the orders from the defense 17 ministry. 18 Q. Professor Garcia, can you please read the second point 19 under Article 26 of the responsibilities? 20 A. Second, to coordinate the technical function of the 21 general staff of the armed force with each of its different 22 branches. 23 Q. What does coordinate the technical function imply? 24 A. We know that military operation means the use or 25 implies the use, the joint use, the joint use of one, two or DIRECT - JOSE LUIS GARCIA 644 1 more elements of the armed forces. Perhaps the army may need 2 support from the air force or craft from the navy or perhaps 3 to provide security of order, these are operations that are 4 called joint forces operations. In order to provide this 5 technical function, I must understand all the operation of all 6 of these branches, and then I must work with the general chief 7 of staff who is really in charge of conducting those forces in 8 order to put together a structure that will allow him to 9 comply with his mission, to fulfill his mission, and that is 10 why the regulations bestowed this authority on the 11 Undersecretary of Defense. 12 Q. Sir, would you please read the third point under 13 Article 26? 14 A. Yes, it reads: To propose appointments, removals, 15 assignments, resignation acceptances and awarding of leaves 16 for officers and employees of the armed forces. 17 Q. Practically speaking, what would the Undersecretary do 18 to comply with that third point? 19 A. In order to know whom I must promote, whom I must 20 demote, who I should change, who I need to throw out, I need 21 to know this thing. Otherwise, I cannot propose a thing. It 22 is my duty to advise the minister of defense who also has the 23 same mission that I have together with the commander in chief 24 of the armed forces who is in the end who will decide. 25 Therefore, my command authority must allow me to oversee all DIRECT - JOSE LUIS GARCIA 645 1 activities carried out by the armed forces and to have true 2 knowledge of who is who within the armed forces because, 3 otherwise, how could I comply with this mission if I don't 4 know the people. 5 Q. Professor, you have testified about the obligations of 6 a commander in terms of investigating, what are the duties of 7 a commander to prevent human rights abuses? 8 A. I will perhaps repeat something that I have already 9 expressed before, but perhaps it is convenient that I do so, 10 because it is basic and essential. Within the chain of 11 command, the commander receives and provides information of 12 all the chain, and for all the chain, I receive information 13 through my orders. If I am within the ministry of defense, I 14 have to provide information to the members of the general 15 staff, to the general and commander of the air force, to all 16 branches. Furthermore, I receive information as to what is 17 going on through the reports that they should provide me with 18 through that very chain of command. The army, for instance, 19 reports of anything that is going on to the chiefs of staff. 20 The general chief of staff report tells me about what is going 21 on in the army and I, in my own duty, must report to the 22 commander In chief. Information comes and goes from superiors 23 to subordinates, from subordinates to superiors, and that is 24 the main means that I have in order to learn what is going on 25 through what flows through my chain of command, but that is DIRECT - JOSE LUIS GARCIA 646 1 not the only means that I have. 2 Q. Professor, if a commander receives information -- 3 information that subordinates have continually been torturing 4 and killing, what concrete steps could a commander take to 5 prevent future tortures and killings? 6 A. First of all, I must make sure that the information has 7 an acceptable degree of truth. For that purpose, I have my 8 own means of information at these levels within the defense 9 ministry. I have -- in the general staff of the armed forces, 10 which is under the ministry of defense, I have the section, 11 it's actually the Intelligence Department, the G-2. The G-2, 12 one of its missions is to keep the members of the structure 13 well informed, their superiors, as to what is happening, 14 everything that is happened. That is the intelligence 15 function. That is one means I have. Furthermore, I have 16 other means. 17 Q. With that information, what steps could a commander 18 take with a particular unit responsible for torture and 19 killing? 20 A. Once that we have verified that the information is 21 real, immediately I must take a number of legal measures which 22 are, as we have said before, ordering an investigation in 23 order to determine the identity of those responsible, then see 24 whether they have already been punished or whether they have 25 been placed at the orders of justice, and if that has not been DIRECT - JOSE LUIS GARCIA 647 1 done, that report on an investigation, once I receive it, I 2 must forward it to the corresponding judge in the several 3 instances or agencies who try crimes against persons and 4 against human rights. That is an element of justice that is 5 present in Salvadoran law. And then the civil judge who is 6 charged with the case, I will just give to him kind of a 7 report. Besides all that, I must also take disciplinary 8 measures. If it was an officer who has not complied with his 9 duty or has allowed subordinates to do so, I must order 10 suspension of his employment immediately, he cannot continue 11 to work in this capacity, and the person who -- the 12 perpetrator himself, I have the authority of placing him under 13 arrest and put him at the disposition of justice, and I have 14 to do that. I cannot allow those people to continue in an 15 attitude that will lead them to commit such violations. 16 Furthermore, this must be an example for the rest of the 17 structure in the sense that I will know -- I will not allow in 18 any way to continue the type of crime that you have described 19 to me. 20 Q. If a commander received information that his 21 subordinates were committing human rights abuses while wearing 22 civilian clothes, what steps could you take to prevent that in 23 the future? 24 A. Now, evidently, this is information that arrives on my 25 command, and I always have the duty of finding out whether DIRECT - JOSE LUIS GARCIA 648 1 this is real information or whether this information that does 2 not deserve our faith, as we say in military language, meaning 3 it does not deserve our attention, if it does deserve our 4 attention, but I don't really have the capacity of knowing who 5 it was, where it was. Because the axis information is being 6 denied to me, I, as a commander, have every capacity and 7 authority of immediately going to the place where the events 8 took place and verify where these violations have taken place. 9 At the place of the events, I would interrogate all those 10 allegedly responsible. Furthermore, one does know through the 11 intelligence services that in this place is where such things 12 happen, there are some who are promoters or some are kind of 13 the heads. If you're a commander, you can find out everything 14 that is going on, so the first thing I would do in use of my 15 authority in being able to go at my own will, I can take those 16 who are allegedly the perpetrators and I will send those to 17 the most dangerous place on the border. Immediately, I would 18 gather the rest of the group, and I would say I would never 19 even tolerate any murmur with regards to this. Now, if we 20 have information that they are committing crimes while in 21 disguise and without wearing their uniforms, I will 22 immediately transfer them or run them from the institution. 23 Now, the officer directly in command of this 24 group, if that person is firmly pointed, as pointed out as 25 the one responsible, I could immediately suggest that he DIRECT - JOSE LUIS GARCIA 649 1 may be sent to retirement or transfer him immediately. 2 The very thing with his immediate superior, if he has 3 tolerated this, let's say in a department, which was army 4 organization, if the department chief does not take 5 measures to correct what one of the companies or sections 6 are doing, he is also responsible and so, therefore, I 7 must punish him too. I have to tell him you are 8 responsible for allowing such a thing, for allowing the 9 prestige of the armed forces to be in everyone's mouth 10 because you have failed to take preventive methods. In 11 the end, there's a number of things I can do. 12 Q. Professor, let me ask you about the treasury police 13 specifically in 1983. What was the reputation of the treasury 14 police in El Salvador? 15 A. From the report I have obtained, I can say that the 16 reputation was not the best. As a matter of fact, it was very 17 bad. It was one of the organizations that had -- that was 18 famous for committing the most human rights violations. 19 Q. If you became Director of the treasury police, what 20 would you do on your first day in light of this? 21 A. On the first day of my command and if there were rumors 22 and news that even within my own command there were 23 clandestine places of detention where human rights were being 24 abused, I would have visited every single corner of my office, 25 my home, the place where I exercise my command and make sure DIRECT - JOSE LUIS GARCIA 650 1 that under my command there would be no activities except for 2 those strictly accepted and authorized and ordered by military 3 regulations and legal orders or laws. Then I would gather all 4 the chiefs of the Finance Police and tell them that even up to 5 that moment there had been some strange events, as of that 6 moment, I would not tolerate them any more. If I had some 7 precise information, as I said earlier, as to one of those 8 members who were alleged violators, particularly human rights, 9 which was the most horrible of knowledge about this 10 institution, I would have immediately separated them from 11 office. I would not tolerate a rotten apple, and then I would 12 proceed to investigate case-by-case those who will be reliable 13 as per reports existing on the operations of this structure. 14 MR. EISENBRANDT: Thank you, Professor Garcia. 15 Your Honor, I pass the witness. 16 THE COURT: Cross examination? 17 CROSS EXAMINATION 18 BY MR. BROOKE: 19 Q. Buenos dias, Professor Garcia. 20 A. Good morning, Mr. Attorney. 21 Q. If there is any question that you do not understand, 22 please do not hesitate to have me repeat it. 23 A. Thank you. 24 Q. How many days have you been in Memphis? 25 A. I have been -- I believe this is the fifth day. CROSS - JOSE LUIS GARCIA 651 1 Q. And besides being paid to testify, are you also being 2 paid for reimbursement of your expenses? 3 A. Yes, I'm provided with food and lodging. 4 Q. And besides testifying in this matter, how many other 5 cases have you testified for either one or more of these 6 attorneys who are in the courtroom here today? 7 A. Of those present here, only for one, Madame. 8 Q. And this year, how many cases have you testified in for 9 the United Nations or the OAS or any other party? 10 A. This year, I have collaborated with Judge Gavel 11 (spelled phonetically) in Paris, France with regards to a 12 trial that he is following against Argentine generals 13 responsible for the murders of French nuns. 14 Q. Have each of the cases you have testified for this year 15 had the same fee arrangement? 16 A. No. 17 Q. Have they been higher or lower? 18 A. I have only been paid for the trip. 19 Q. Is it true that the per capita income in Argentina is 20 about $12,000 per year of U. S. dollars? 21 A. According to whom? 22 Q. From your knowledge as being a Buenos Aires citizen in 23 Argentina -- 24 MR. EISENBRANDT: Objection, Your Honor. The 25 witness is not qualified as an economic expert. CROSS - JOSE LUIS GARCIA 652 1 THE COURT: Objection is overruled, only in the 2 sense that it is designed to bring some perspective to the 3 compensation question. 4 A. Well, that depends. You see, an attorney makes a lot 5 more than a laborer, and if you're asking about the average 6 salary throughout the country, I don't really know what you 7 mean. 8 BY MR. BROOKE: 9 Q. Professor, Argentina is at the bottom of South America, 10 is that correct? 11 A. It is in the southern most part, not in the lower part. 12 THE COURT: Sort of depends on where you are in 13 the universe. 14 BY MR. BROOKE: 15 Q. And El Salvador is northwest of Argentina? 16 A. It is northwest, yes. 17 Q. I would like to understand your actual service in the 18 Argentine army. Am I correct that your first assignment was 19 in the calvary in 1948? 20 A. Yes. 21 Q. Sir, when you started in the calvary in 1948, were -- 22 was the calvary identified as the gaucho part of the army? 23 A. I wish it had been recognized in that manner, because 24 the gauchos are indeed a national pride and creators of our 25 nationality, but, no, they were soldiers. CROSS - JOSE LUIS GARCIA 653 1 Q. And in that position, you were in -- if we look at our 2 military chain of command chart, you were somewhere underneath 3 the army? 4 A. Yes, way down. 5 Q. And then how long did you serve in the calvary? 6 A. I served in all ranks all the way to captain. In my 7 country, it is not like in El Salvador, if you enter the 8 calvary, you die as a calvary man, and if the gunner goes into 9 artillery, he ends up as an artillery man; we do not switch 10 branches. 11 Q. How long did you serve in the army in the calvary 12 corps? 13 A. I was there until the third year as a captain when I 14 entered the Superior War College, it was approximately 10 15 years. 16 Q. So are you saying you were three years serving in the 17 calvary? 18 A. Ten, ten. 19 Q. Ten years. So from 1948 to 1958, approximately, is 20 when you served in the calvary? 21 A. Approximately. 22 Q. Was any of that service for those ten years while you 23 were teaching at any war college or going to a war college? 24 A. No, it was when I was in calvary regiments, and then 25 later on when I was in the calvary school. CROSS - JOSE LUIS GARCIA 654 1 Q. After you served up to the office of a captain in the 2 calvary, approximately up until 1958, what was your next 3 assignment? 4 A. Afterwards, I attended Superior War College for three 5 years. 6 Q. And then after that three years, what did you do? 7 A. Then I was selected to come to the United States to 8 take the course as armored carrier in Fort Knox. 9 Q. I believe that course was approximately one and a half 10 years? 11 A. One year. 12 Q. So that puts us to about 1962. What did you do then? 13 A. It would be 1963. 14 Q. All right. And what did you do then. 15 A. Then I went back to the calvary school that I had just 16 left. After I had been there for about three months there at 17 the calvary school in courses, then I was selected for part of 18 what was called Special Commission for the Restructuring of 19 the army, which changed the full structure of the Argentine 20 army through one year's work. 21 Q. It took one year to change the structure? 22 A. Two -- three years. 23 Q. And then what did you do? 24 A. Then I was selected to be the commander of the Sixth 25 Calvary Regiment. CROSS - JOSE LUIS GARCIA 655 1 Q. And I believe at the Sixth Calvary, you had 2 approximately 2200 troops under your authority? 3 A. Yes, that was the greatest number we had, because in 4 the Argentine Republic we have a graduating class that comes 5 in, and then nine or ten months later, we start getting 6 attrition and so regiments start being reduced. In those 7 days, we used to have military service, compulsory military 8 service, we would get a class coming in, and then later on 9 they would leave. 10 Q. And then you were -- as commander of the Sixth Calvary 11 Regiment for how long? 12 A. Two years, almost two years. 13 Q. So that puts us to about 1967 or '68? 14 A. Yes. 15 Q. And then what did you do? 16 A. Then I was taken to the Joint Chiefs of Staff of the 17 armed forces. 18 Q. And what was your position there? 19 A. I was in charge of the Operations Department of the 20 Joint Chiefs of Staff for a long term. 21 Q. How long? 22 A. I was there on one -- two years. 23 Q. So that puts us at about 1970, 1971? 24 A. Yes. 25 Q. And then what did you do, sir? CROSS - JOSE LUIS GARCIA 656 1 A. That is when, together with a group from my army, all 2 of us having the rank of colonels, we decided to end the 3 military dictatorship. 4 Q. From 1948 to 1971, how many military dictators did you 5 serve under? 6 A. I can say -- please, let me do the calculation. First, 7 the revolution called liberty -- first, the revolution called 8 liberating revolution which ended the presidency of President 9 Perone. Then the dictatorship of General Ongania and then the 10 dictatorship of General Lanuce, and that is when we revolted. 11 Lanuce, and that is when we revolted. 12 Q. Now, when you were in the army, I take it you were not 13 part of the general staff or the Office of ministry of defense 14 for your country? 15 A. During that time period? 16 Q. During the time period we have talked about up to now. 17 A. Yes, through the command chain, I did depend on the 18 ministry of defense. 19 Q. I've not asked if you depended on it, I asked if you 20 were, in fact, part of. 21 A. I was part of the ministry of defense, because the 22 ministry of defense was comprised of a number of organizations 23 from the top levels all the way down to regiment level. 24 Q. Did you work in the office of the ministry of defense 25 for Argentina up until 1971? CROSS - JOSE LUIS GARCIA 657 1 A. No, I formed part of the structure, but at the 2 Minister's office, I did not work. 3 Q. Were you of the commander in chief of the armed forces 4 of Argentina? 5 A. They didn't let me get there. 6 Q. On the -- after 1971, what was the next position that 7 you ever accepted with the Argentine military forces? 8 A. Prisoner. 9 Q. And what was the next position you accepted? 10 A. The next position was once the regular government had 11 come back, it was -- it was once the constitutional government 12 had returned and they appointed me as a professor at the 13 Superior War School, and at that point, I had to really learn 14 what the composition was of the Office of the ministry of 15 defense because I needed to teach about it. 16 Q. And you taught and were with a war college or war 17 school from then on, is that correct? 18 A. At the Superior War College for two years, interrupted 19 then by the war of the South Atlantic. 20 Q. The war of the South Atlantic, we know as the Invasion 21 of the Falkland Islands? 22 A. I know no such a thing as Falkland Island. I know the 23 Malvinas Islands, which are Argentine. 24 THE COURT: I think he used the nongovernmental 25 term in that area, so we can move on. CROSS - JOSE LUIS GARCIA 658 1 BY MR. BROOKE: 2 Q. In World War I, the Argentine army and the country was 3 declared a neutral, is that correct? 4 A. I understand so. I was not really born yet, but I 5 understand that Argentina was neutral during that conflict. 6 Q. What is your age, sir? 7 A. Eighty years of age. 8 Q. And in the second world war, up until March 27th, 1945, 9 Argentina declared itself to be a neutral nation, didn't it? 10 A. It was neutral during the first years, and during the 11 last year, it declared war on the countries of the Axis. 12 Q. And up until that time, it provided arms for the Axis 13 nations, didn't it? 14 A. That is what you say. I have no such information. 15 Q. Well, when you began your service in 1948, had 16 Argentina also become a haven, a center for accepting 17 former -- 18 MR. EISENBRANDT: Objection, Your Honor, 19 relevance. 20 THE COURT: Objection sustained, not relevant 21 in the case. 22 BY MR. BROOKE: 23 Q. Sir, on the military chain of command, where do the 24 military colleges fit? 25 A. The military colleges fall within each one of the CROSS - JOSE LUIS GARCIA 659 1 different branches of the forces. There's one for the army, 2 one for the air force. Each one of these structures has a 3 recruitment center, and I'm making reference to my country. 4 I'm not sure if you're asking about that. 5 Q. For your country, the military colleges that you served 6 for would all have been under the command of the army? 7 A. Yes, the army. 8 Q. In 1979 and 1980 in El Salvador at the Vice-minister, 9 Sub-minister of Defense office, how many people did 10 Mr. Carranza have on his staff? 11 A. In those days, the army of the Republic of El Salvador 12 had covered a lot of its organization, meaning that they 13 had -- or under the organization, they had the superior 14 command of the chief of the armed forces which depended, and 15 they had a group for laborer. It would be perhaps -- well, I 16 don't really know because I did not personally tour this, but 17 like any work organization, it would have personnel, 18 intelligence, logistics departments, and it also had general 19 staff of the armed forces, and I don't want to give you a 20 number, because I don't really know. 21 Q. How many people worked in the intelligence area? 22 A. No, I don't know. 23 Q. How many people were in the air force? 24 A. How many people worked at the air force is that the 25 question? CROSS - JOSE LUIS GARCIA 660 1 Q. Yes. 2 A. Of El Salvador? 3 Q. Yes. 4 A. It was a reduced number, because the air force was 5 barely being put together. They had a small number of 6 aircraft. The air force might have, I calculate, maybe 200 or 7 300 persons. 8 Q. How many people worked for the national navy? 9 A. Yes. National navy was also being formed. They were 10 operating on small patrol boats in the Gulf of Vonseca, 11 particularly on the border of Nicaragua, and I calculated it 12 might have the same amount of people that the air force had. 13 Q. How many people were in the national guard? 14 A. I can actually tell you that the combined armed forces 15 of El Salvador back in 1979 was in the order of 14,000 16 persons, and the mass was under the army, then the national 17 guard. The national police had some less troops, and then the 18 smallest, of course, was the treasury police. 19 Q. Beside these Treasury and national police, were there 20 local police departments also? 21 A. Not that I know of. 22 Q. When the coup detat took place, I think, in October of 23 1979, how many military were discharged through the result of 24 the coup detat? 25 A. As I said earlier, those who were run from their CROSS - JOSE LUIS GARCIA 661 1 institution were the generals, not a single general was left 2 in there. There were 10 or 15 generals in the structure 3 accompanied by some colonels. 4 Q. So is it your testimony basically then that the rest of 5 the military stayed intact? 6 A. The rest of the forces were left practically intact 7 except for some small modifications. 8 Q. Where in the military chain of command that you have 9 referred to do U. S. military advisors appear? 10 A. U. S. military advisors, I remember there was a colonel 11 in charge of the program for advisory and equipping the 12 Salvadoran armed forces who worked at the level of the 13 ministry of defense, and then each one of the other forces, 14 let's say the army, the air force, they had their own 15 advisors. 16 Q. Are you saying then they would work within this 17 military chain of command? 18 A. No, outside, but for the United States armed forces, 19 they did send troops outside their country. 20 Q. Am I correct that you started serving as an expert 21 witness in 1983? 22 A. In 1984. 23 Q. And that first trial was in Argentina, then you were in 24 a trial in 1991 in El Salvador, and then in a trial in Haiti 25 where each of the defendants were in a criminal case, is that CROSS - JOSE LUIS GARCIA 662 1 correct? 2 A. They were accused -- well, actually, I did more cases 3 like this than you say, but those which you have pointed out, 4 they were all accused of human rights abuses. 5 Q. And those were criminal trials in the country where the 6 crime was committed, is that correct? 7 A. That is correct, criminal cases handed down by civil 8 courts in which I served as an expert witness such as this 9 one. 10 Q. Now, as a military expert, designated expert for the 11 United Nations since 1983? 12 A. No. It was in 1984, as I said, and I was working for a 13 commission that was trying the three military juntas that we 14 had in my country from 1976 to '84, and they were tried for 15 violations to human rights by a federal chamber which saw all 16 three cases together, and that federal chamber proposed that I 17 work as an expert witness because in those days, I was a 18 professor of national defense at the national defense School. 19 Q. Well, are you an expert for the United Nations in 20 stopping human rights violations in countries around the 21 world? 22 A. No, not to stop them. I am an expert for advising 23 courts on these matters. I don't really have a power to stop 24 them, but I can provide my opinion as an expert witness at any 25 trial on alleged violators of human rights. CROSS - JOSE LUIS GARCIA 663 1 Q. And this is for what you are no amateur? 2 A. I am no amateur because I have a title that enables me 3 to do so, just like you have a title as an attorney which 4 allows you to perform at this trial. 5 Q. In the chain of command, everyone is under authority, 6 is that correct? 7 A. All groups or persons are under an authority. 8 Q. And that is the basis for every military structure? 9 A. That is the basis, that does not detract responsibility 10 or authority from any of the members of the chain of command. 11 Q. You had mentioned the Geneva Conventions? 12 A. Yes, I made reference to the four Geneva Conventions 13 with its third additional article which is meant to cover 14 internal conflicts in order to protect not only prisoners of 15 war but also civilian populations involved in a conflict and 16 all the norms that a military commander must follow of any 17 hierarchy in order to protect those who have deposed weapons, 18 those who are not involved in the conflict or who are victims 19 of the conflict. 20 Q. And as you said, there is to be the greatest care 21 extended to observe and not interfere with the civilian 22 population? 23 A. It's not a matter of not interfering, it is rather 24 avoiding causing them any harm or avoiding any crimes against 25 them. It is not a matter of not interfering with the civilian CROSS - JOSE LUIS GARCIA 664 1 population, but rather making sure that there are no abuses 2 against the population. 3 THE COURT: We probably should take our lunch 4 break now. 5 Ladies and gentlemen, we will be coming back at 6 1:30, that's an hour and 15 minutes from now. Do not 7 discuss the case among yourselves. Do not let anybody 8 talk with you about the case. We will start promptly at 9 1:30. 10 THE CLERK: All rise. This Honorable Court 11 stands in recess until 1:30. 12 (Recess taken at 12:15 until 1:30 p.m.) 13 THE COURT: You can bring the panel in. 14 (Jury in at 1:30 p.m.) 15 THE COURT: You may be seated, and counsel may 16 proceed. 17 BY MR. BROOKE: 18 Q. Professor, you have indicated that in October or the 19 fall of 1979, there was a coup detat in El Salvador. 20 A. Could you repeat the years? 21 Q. 1979, October, 1979. 22 A. Yes. 23 Q. And rather than there being a commander in chief, a 24 junta was established? 25 A. I have already clarified that the commander in chief CROSS - JOSE LUIS GARCIA 665 1 position belongs to the president of the country or whomever 2 replaces him. And then the junta appoints one of its members, 3 Colonel Majano as the commander in chief of the normal forces. 4 Q. Who was -- who were the members of the junta? 5 A. The military members of the junta were Majano and 6 Gutierrez, both colonels, and then after that, they were 7 the -- the names escape me at this point, but they were 8 civilians who represented different political trends in the, 9 shall we say, in the City of San Salvador. 10 Q. So you do not know the names of the four civilian 11 members of the junta? 12 A. Yes, I have them written down, but I don't recall them. 13 Q. When you were going to El Salvador in 1991 to 14 participate in the trial in El Salvador regarding the Jesuit 15 priest, how much time did you spend in El Salvador at that 16 time? 17 A. A little bit over three weeks. 18 Q. During that time, what government documents did you 19 review? 20 A. At that time, I reviewed -- well, I start, as I always 21 do, with the political Constitution of the country, then I 22 take up the defense law, then the Code of Military Justice, 23 then I take the ordinance that is in force for the period, and 24 from there, new needs for other documents will arise, 25 depending on the type of matter that I'm investigating. CROSS - JOSE LUIS GARCIA 666 1 Q. You indicated that while you were there in 1991, it was 2 the height of the Civil War? 3 A. It was the height of -- well, it was almost the end of 4 the Civil War, because there was a face off, shall we say, the 5 country's authorities with a guerrilla that was operating also 6 in the country. It was close to the beginning of the peace 7 talks. 8 Q. Do you know when Mr. Carranza left El Salvador? 9 A. Yes, in 1984. 10 Q. You've discussed the Argentine Constitution provision 11 that said all citizens are required to rise up against a 12 military dictatorship, is that correct? 13 A. Yes. 14 Q. And you with other officers in approximately 1971 15 decided to exercise and rely upon that provision, is that 16 correct? 17 A. Yes. 18 Q. How long had that provision been in the Argentine 19 Constitution? 20 A. As of the year 1853. 21 Q. And is the provision still in the Argentine 22 Constitution? 23 A. Yes. 24 Q. And since 1948, since you have been part or associated 25 with the Argentine army and government, how many military CROSS - JOSE LUIS GARCIA 667 1 dictatorships have there been? 2 A. You're asking me while I was in service? 3 Q. Since -- 4 A. After duty -- 5 Q. You have been -- from 1948 all the time through your 6 association as a professor with war colleges and everything. 7 A. I believe I already answered that, but I will repeat. 8 Well, in 1955, we had the liberating revolution which was a 9 military dictatorship, and then in the year 1966, we had a 10 dictatorship of General Lanuce, and then in '67, '68, around 11 there, I am not exactly clear, the dictatorship of General 12 Launce against which I did rebel. 13 Q. Did you rebel against the dictatorship, military 14 dictatorship of General Jorge Videla in 1975? 15 A. I was outside the armed force because, well, I had 16 just -- I had just -- I had been arrested, I had been in jail. 17 THE COURT: Let's check your battery there, it 18 is probably dying on this one. We will get you a new 19 battery. 20 THE INTERPRETER: The interpreter would supply 21 the second portion of the witness' response. 22 THE COURT: Yes, sir. 23 A. Along with other friends, who in the same situation, we 24 had established a security company in order to make money with 25 which to live. When democracy returns to my country, I return CROSS - JOSE LUIS GARCIA 668 1 to the armed force. 2 BY MR. BROOKE: 3 Q. Did you rebel against the military dictatorship of 4 Field Marshal Roberta Viola in March of '81? 5 A. He wasn't a field marshal, he was a lieutenant general, 6 but I could not rebel because I have already told you, I was 7 not a member of the armed force, I was outside, I didn't get 8 back in 1983 when the third junta or dictatorship concludes 9 and the presidential administration of Dr. Alfonsin begins. 10 Q. And Raul Alfonsin is with the Radical Civic Union? 11 A. That is the name of the party that won the election and 12 he goes in as the president. 13 Q. And in 1979 in El Salvador when the coup detat takes 14 place, you have described that there was a revolution in 15 place, is that correct? 16 A. Yes. 17 Q. And you have described that as a military officer, one 18 of your obligations is to avoid and protect the country and to 19 avoid the jeopardy of the insecurity of the state? 20 A. Yes, it is to protect the country and to protect the 21 institutions of the government, the governmental institutions 22 that emerge from the Constitution. 23 Q. At any time while you have served in the army of 24 Argentina, were you retained by the Central Intelligence 25 Agency of the United States and requested to provide CROSS - JOSE LUIS GARCIA 669 1 information? 2 MR. EISENBRANDT: Objection, relevance. 3 THE COURT: Let's talk about it at side bar. 4 (The following proceedings had at side-bar 5 bench.) 6 MR. EISENBRANDT: Your Honor, I don't know what 7 his answer is going to be, but I don't know what -- 8 THE COURT: Well, do you know the answer? 9 MR. BROOKE: I have no idea. 10 MR. EISENBRANDT: I don't know what that has to 11 do with his expertise in the military structure, in the 12 Salvadoran military structure, in particular. 13 THE COURT: I wouldn't think it would make any 14 issue in the case more likely or less likely -- 15 MR. BROOKE: I think our position, Your Honor, 16 has been that Mr. Carranza was recognized by the United 17 States government to be a person of trust. 18 THE COURT: I don't know about that. I don't 19 know any information to that effect. 20 MR. BROOKE: That's our position. 21 THE COURT: Right. 22 MR. BROOKE: And this man is attempting to -- 23 THE COURT: Our government also has paid some 24 pretty bad people. 25 MR. ESQUIVEL: We agree with that, Your Honor. CROSS - JOSE LUIS GARCIA 670 1 MR. BROOKE: In this case, this man has 2 testified as a military expert. We're saying effectively 3 go after the weight of his testimony, that we're showing 4 that his relationship, experiences have absolutely no 5 comparable situation to that of Mr. Carranza, what he's -- 6 THE COURT: Well, that would be different from 7 the question of whether or not he -- what was he -- I have 8 no idea the answer. Nobody knows? 9 MR. EISENBRANDT: I don't know what the answer 10 is. 11 THE COURT: Why don't we find out the answer? 12 MR. FARGARSON: Well, he answered the question. 13 MR. EISENBRANDT: I actually didn't hear what 14 he said when I was walking up. 15 MR. FARGARSON: He said something. Even though 16 we were coming to side bar, I understood him to say 17 something in Spanish like God help me from -- God keep me 18 from making something. 19 THE COURT: I don't know. 20 (The interpreter came to side bar.) 21 THE INTERPRETER: Yes. 22 THE COURT: I think we did not hear the answer 23 that he gave. 24 THE INTERPRETER: The objection was raised, and 25 the gentleman uttered some words, but you were already on CROSS - JOSE LUIS GARCIA 671 1 your way to side bar, so I did not interpret. 2 THE COURT: And our only question was did he 3 indicate already whether or not he ever worked for the 4 CIA. 5 THE INTERPRETER: In a matter of speaking, yes. 6 THE COURT: He did indicate whether or not -- 7 THE INTERPRETER: Yes, he did indicate whether 8 or not. 9 THE COURT: Did he say whether or not he did, 10 did he yes or no? 11 THE INTERPRETER: He said God forbid such a 12 thing should fall upon me. 13 THE COURT: That's what I thought he said. 14 We will let him answer the question. Sometimes 15 it makes a difference. You want to know and they don't 16 have an objection, then we have no issue. 17 MR. EISENBRANDT: No, as long as I'm not 18 waiving an objection on any further relevance on that. 19 THE COURT: Okay. No problem. 20 (The following proceedings were had in open 21 court.) 22 THE COURT: The witness may answer the 23 question. 24 A. God forbid such a thing should fall upon me. 25 BY MR. BROOKE: CROSS - JOSE LUIS GARCIA 672 1 Q. And, sir, the greatest punishment that an officer can 2 have is the revocation of his command and termination of 3 employment? 4 A. As a result of a disciplinary breach, yes. If you talk 5 about a crime, then that's something else. 6 MR. BROOKE: Thank you very much, Professor. 7 THE COURT: Redirect? 8 MR. EISENBRANDT: I have no further questions, 9 Your Honor. 10 THE COURT: All right. Thank you very much. 11 We will allow you to step down. 12 (Witness excused.) 13 THE COURT: Ms. Blum, who will our next witness 14 be? 15 MS. BLUM: The plaintiffs call Irma Calderon. 16 THE CLERK: Ma'am, if you will raise your right 17 hand to be sworn. Do you solemnly swear that the 18 testimony you are about to give the court and jury in this 19 matter to be the truth, the whole truth and nothing but 20 the truth, so help you God? 21 THE WITNESS: Yes, I swear. 22 THE CLERK: You may take the witness stand. 23 24 25 DIRECT - IRMA CALDERON 673 1 (Francis Icaza previously sworn to interpret 2 English into Spanish and Spanish into English.) 3 IRMA CALDERON, 4 was thereupon called as a witness on behalf of the 5 plaintiffs, and having been first duly sworn, was 6 examined and testified as follows: 7 DIRECT EXAMINATION 8 BY MS. BLUM: 9 Q. Mrs. Calderon, where do you currently reside? 10 A. At Daly City, California. 11 Q. And how long have you been living there? 12 A. Almost four years. 13 Q. What is your current occupation? 14 A. Housekeeping. 15 Q. Do you work for a company or do you work for individual 16 families? 17 A. For a company and individual families. 18 Q. And are you married? 19 A. Yes. 20 Q. How long have you been married? 21 A. Twenty-one years. 22 Q. And what is the name of your husband? 23 A. Mario F. Najarro. 24 Q. And what is your husband's occupation? 25 A. He's an electrician. DIRECT - IRMA CALDERON 674 1 Q. Do you have any children? 2 A. Yes. 3 Q. How many children do you have? 4 A. Two. 5 Q. How old are your children? 6 A. Nineteen and 18 years old. 7 Q. Are they still living at home with you? 8 A. Yes. 9 Q. Are they students? 10 A. Yes. 11 Q. What is your current immigration status? 12 A. I am an asylum applicant. 13 Q. Do you hope to become a U. S. citizen one day? 14 A. Yes. 15 Q. What is the country of your birth? 16 A. El Salvador. 17 Q. And what city were you born in in El Salvador? 18 A. In Ahuachapan. 19 Q. How old are you now, Ms. Calderon? How old are you? 20 A. Forty-seven years old. 21 Q. I would like to ask you a few questions about your 22 family in El Salvador, your family of origin. How many 23 siblings do you have? 24 A. Three. 25 Q. How many brothers and how many sisters? DIRECT - IRMA CALDERON 675 1 A. Two sisters and one brother. 2 Q. And where do you fit into the order of the children? 3 A. I am the second. 4 Q. And when you were growing up, what was your father's 5 occupation? 6 A. He's always been a professor and the principal at a 7 school. 8 Q. What kind of school was that? 9 A. An elementary school, yes. 10 Q. And what was your mother's occupation? 11 A. She was a professor too. 12 Q. For most of your childhood, did your family live 13 altogether in one house? 14 A. Yes. 15 Q. Could you tell the jury a little bit about your 16 relationship with your father when you were growing up? 17 A. We had an excellent relationship. He was all the best 18 to me. He was friendly, he was respectful, he was protective. 19 I can -- I cannot describe all that he was to me. He was 20 everything to me. 21 Q. Do you know whether your father was involved in any 22 organizations? 23 A. Yes. 24 Q. Could you tell the jury what the organizations were? 25 A. In ANDES June 21. DIRECT - IRMA CALDERON 676 1 Q. Do you know what kind of organization ANDES June 21 2 was? 3 A. Yes. 4 Q. What was that? 5 A. It was a teacher's organization, a union dedicated to 6 achieving greater benefit, social benefits, financial benefits 7 for all of its members. 8 Q. Do you know if the ANDES organization was affiliated 9 with any other organizations? 10 A. No. 11 Q. Do you know if your family was involved in any other 12 organizations besides ANDES? 13 A. No. 14 Q. Did you -- could you tell the jury a little bit about 15 your own schooling, where did you attend school? 16 A. Yes, I studied my full elementary school and my high 17 school -- all the way to the high school. And then I did this 18 in Ahuachapan. After that, I graduated from the university 19 with a degree in economics. 20 Q. What university did you attend? 21 A. I attended the Central American University known as 22 Jose Simeon Canas, UCA. 23 Q. What year did you enter the UCA? 24 A. At the end of 1975. 25 Q. And while you were attending the UCA, did you live at DIRECT - IRMA CALDERON 677 1 home in Ahuachapan? 2 A. No. 3 Q. Where did you live? 4 A. Well, I moved because of the distance, it was too far 5 away, so I moved over to new San Salvador to Ciudad Merliot, 6 Santa Tecla. 7 Q. And who were you living with? 8 A. I lived there with my brother and with a maid who 9 assisted us in doing the household chores. 10 Q. And your brother's name is? 11 A. Jose Francisco Calderon. 12 Q. And how many years did you attend the university? 13 A. Six years. 14 Q. And so you were attending the university and living 15 with your brother in 1980, is that correct? 16 A. Yes, yes. 17 Q. Do you know who Nicolas Carranza was in 1980, what 18 position he held? 19 A. Yes. 20 Q. What was that position? 21 A. He was the deputy minister of defense and public 22 safety. 23 Q. Did there come a point when your father came to live 24 with you and your brother? 25 A. Yes. DIRECT - IRMA CALDERON 678 1 Q. When was that? 2 A. He came to live with us in June of 1980. 3 Q. Do you know why your father came to live with you then? 4 MR. FARGARSON: Your Honor, excuse me just a 5 moment, may we approach? 6 THE COURT: Sure. 7 (The following proceedings had at side-bar 8 bench.) 9 MR. FARGARSON: I think Ms. Blum is getting to 10 a point where she may -- she is not going to give hearsay 11 as to what she was told or what she heard because in the 12 deposition she said she didn't know about the brochures or 13 anything like that. 14 MS. BLUM: Oh, yeah, I'm not having her -- she 15 is not going to testify to any of it. 16 MR. FARGARSON: Okay. The -- well, I just want 17 to make sure she doesn't say what she heard before I would 18 get to object, so as long as you just stay on that track. 19 MS. BLUM: I hope that she is not going to do 20 that. She isn't planning to. I'm just soliciting a very 21 generic sort of response from her. 22 MR. FARGARSON: I didn't mean to interrupt you 23 in the middle of something, I wanted to try to get this 24 fleshed out. 25 MS. BLUM: I appreciate that. DIRECT - IRMA CALDERON 679 1 THE COURT: And one other thing, if she is no 2 longer a party, she is a witness? 3 MS. BLUM: She is a witness. 4 MR. BROOKE: As to what her father said, are 5 you planning on getting her -- that he had been threatened 6 and that type of thing? 7 MS. BLUM: I think she was aware that her 8 father felt fear. She is not going to be discussing the 9 content of a conversation she had with her father. 10 MR. BROOKE: You had said -- in the deposition 11 she says one place that the security -- her father said 12 the security police were there at the door, something like 13 that. 14 MS. BLUM: Oh, in terms of the events of the 15 night of her father's assassination, she will be reporting 16 her eyewitness account from her point of view of what 17 happened during the assassination. 18 MR. FARGARSON: She can do that. The thing I 19 was concerned about is those brochures, she said she had 20 to learn that from somebody because she said she didn't 21 know anything about it. 22 MS. BLUM: Right. She is not planning to 23 testify about that. 24 MR. FARGARSON: I know you're going to do the 25 right thing, but I just wanted to make sure that you did. DIRECT - IRMA CALDERON 680 1 MS. BLUM: Okay. 2 (The following proceedings were had in open 3 court.) 4 BY MS. BLUM: 5 Q. Ms. Calderon, where we left off, you had just stated 6 that your father came to live with you at -- in what month? 7 A. In June of 1980. 8 Q. If you know, do you know why he came to live with you? 9 A. Yes, he felt threatened. 10 Q. I would like to direct your attention to the events of 11 the evening of September 11th, 1980. What time did you 12 normally return from school to your home? 13 A. Almost always at about 6:00 in the afternoon. 14 Q. And do you remember whether that e