JUSTICE DEFERRED : The Salvadoran military & U.S. policy.

On Friday, November 3, in Palm Beach, Florida, two retired Salvadoran military officers, both former defense ministers, General Jose Guillermo Garcia and General Eugenio Vides Casanova, were cleared of any liability in the murder of four American women on December 2, 1980, by Salvadoran national guardsmen. The women were Maryknoll sisters, Ita Ford and Maura Clarke; Dorothy Kazel, an Ursuline; and Jean Donovan, a lay missionary.

November 3, 2000, almost twenty years after the four women were murdered, was a day of profound disappointment for the families of the American churchwomen. "I thought the evidence was overwhelming," said William Ford, brother of Ita Ford. The families were represented pro bono by two prominent Florida attorneys, Robert Montgomery and Robert Kerrigan. The Lawyers Committee for Human Rights, through its research and persistence, was instrumental in bringing the civil case to trial in federal district court under a 1991 federal law, the Torture Victims Protection Act.

As U.S. ambassador to El Salvador from 1979 to 1981, I was called to testify at the trial. Copies of the telegrams I sent as ambassador during this period were projected onto a large screen to allow the judge and jury to read them. These diplomatic communications, declassified for the trial, described my efforts to persuade Garcia and Vides Casanova to put an end to the military death squads. I told the court that the generals' refusal to root out the worst offenders in the security forces had led directly to the escalation of violence, the deaths of as many as sixty-five thousand civilians, including the American churchwomen, and the intensification of El Salvador's civil war.

In these telegrams, I further described my efforts to impress on Garcia, Vides Casanova, and other high-ranking Salvadoran military that their failure to curb official violence not only brought shame on the Salvadoran military and its partner, the United States, but constituted a serious threat to the stability of the government then led by civilian reformer Jose Napoleon Duarte.

In one telegram, I describe the Alice-in-Wonderland quality of a meeting with Garcia in which I tried to persuade him to cleanse the security forces of their worst offenders. This plea was met with his claim that the military was innocent of any abuses. When I pressed him, Garcia finally admitted that perhaps 1 percent of his troops might be involved in death squads. I then pointed out that with 16,000 men under arms that meant that, at a minimum, 160 uniformed criminals were murdering civilians with total impunity. Despite his admission, Garcia refused to make any commitment to take action against the soldiers.

In a later cable, I wrote, "Garcia admitted that the excesses were grave and said that he had a good idea who was responsible." The telegram goes on to say that Garcia "was sure that there were individual cases of security force participation in death squads." Robert Montgomery, lead counsel for the families of the murdered churchwomen, bore down on these telegrams because they spoke to the issue of command responsibility (the legal doctrine under which the generals had been charged), that is, that the generals knew about the abuses and did nothing to stop them. At the trial, I affirmed that the Salvadoran military had a hierarchical structure and that if the defendants "gave the explicit order to stop the killing, then it would stop." Of course neither Garcia nor Vides Casanova ever gave such an order.

Garcia and Vides Casanova pleaded innocent to the charges, stressing that the Reagan and Bush administrations would not have supported the Salvadoran army had they not been carrying out U.S. policy successfully. Attorney Kurt Klaus, representing Garcia and Vides Casanova, rested the generals' defense on the theory "that these men were doing basically what the U.S. government wanted them to do." It was a telling point.

Immediately following the 1980 U.S. election, members of the Reagan transition team traveled to El Salvador and spoke to key figures in the Salvadoran power structure, reassuring them that on inauguration day, January 20, 1981, military aid would flow again, free of the human-rights conditions imposed by the Carter administration. The Salvadoran military understood this as a go-ahead signal and unleashed a torrent of violence. Hundreds of ordinary Salvadorans were killed, and for the first time American citizens were targeted.

In the short period of ten weeks between the U.S. election in November and the inauguration of Ronald Reagan, in addition to the American missionary women, the Salvadoran security forces killed Marcial Serrano, a Salvadoran priest; destroyed the Catholic radio station WSAX; tortured and assassinated seven leaders of the moderate, nonviolent Democratic Revolutionary Front; killed freelance American journalist John Sullivan; and assassinated the director of the government's land reform agency, Jose Rodolfo Viera, and two American advisers from the American Institute of Free Labor Development, Michael Hammer and Mark Pearlman.

Notwithstanding my numerous reports to the State Department making it clear that the Salvadoran military killed the churchwomen and that Garcia, Vides Casanova, and other members of the military high command were stonewalling the investigation, I received a telephone call in mid-January from the department's acting assistant secretary for inter-American affairs, John Bushnell, saying that Secretary of State-designate Alexander Haig wanted me to file a report assuring him that the Salvadoran military were "making progress on the nuns' case." After a barbed conversation with Bushnell, I wrote a telegram that said, "I will have no part of any cover-up. All the evidence we have, and it has been reported fully, is that the Salvadoran government has made no serious effort to investigate the killings of the murdered American churchwomen."

In late January, Haig, now secretary of state, told the House Committee on Foreign Affairs, "I would like to suggest to you that some of the investigations would lead me to believe that perhaps the vehicle that the nuns were riding in may have tried to run a roadblock or may have accidentally been perceived to have been doing so, and there may have been an exchange of gunfire."

This was what the Salvadoran officers had been waiting to hear--a high-ranking U.S. official who would publicly take their side even if it meant misrepresenting the facts. This confirmed what had already been communicated during the election campaign and transition period. The Salvadoran military knew that there were no "investigative reports" to justify Haig's statement. Embassy cables, photographs, and eyewitnesses unanimously testified to the gangland-style executions of the churchwomen.

Haig was putting into practice the guidelines set down in a January 24, 1981 meeting of Reagan's National Security Council:

Our support for the [Salvadoran] government has been highly conditional with military assistance expressly turned on and off to press the military to control violence from within itself and from the Right and to meet specific concerns such as the investigation of the murders of the four American churchwomen. This has strained our relationship with the all-important military leadership and raised doubts as to the firmness and reliability of our commitment to support the government. Such doubts urgently need to be resolved.

Translated into plain English this meant that regardless of how many civilians the Salvadoran security forces killed, U.S. military aid would not be affected, but would flow in ever-increasing amounts.

Obviously the jury in the trial of Garcia and Vides Casanova was offered a different and opposing view by the defense: times were chaotic and the generals had done their best, they said. The proof that they had done their best? Had not General Garcia received letters of commendation from high U.S. officials, including the Legion of Merit, the highest honor our government can bestow on a foreign dignitary? Had not General Vides Casanova also received the Legion of Merit and a letter of commendation from President Reagan? And finally, Ambassador Edwin Corr, envoy to El Salvador more than four years after these events (1985-88), appeared as a character witness for Vides Casanova, testifying that the former minister of defense "made a tremendous contribution to the country and to the reduction of human-rights abuses."

The doctrine of command responsibility is new to the U.S. judicial system; this is the first case ever brought under its rule. The judge told the jury that "a military commander is obligated, under international law and United States law, to take appropriate measures within his power to control the troops under his command and prevent their committing torture and extra-judicial killing."

It is hard to believe that the preponderance of evidence did not persuade the jury to convict the generals. For almost two weeks, the ten jurors received a crash course on El Salvador during the 1980s, when torture, murder, and state terror killed sixty-five thousand civilians and drove more than a million terrified poor people to the United States. After the verdict, the foreman of the jury said, "We're talking about control, enough to control what they did as it was presented to us at a chaotic time and conflict. There was no way we could determine these two guys could control all events happening with their troops."

Of course, if the jurors had found Garcia and Vides Casanova guilty they would be, at the same time, finding the Reagan administration guilty of aiding and abetting the criminal acts of the Salvadoran military. It may be that the members of the jury--like most Americans--still have faith in their government. The jury may have found the Salvadoran generals innocent because its members were also finding their own country not guilty.

Robert E. White, a former United States ambassador to El Salvador and Paraguay, is president of the Center for International Policy.