Russell Cohen and Matt Eisenbrandt “The Archbishop Romero Case: Legal Accountability in U.S. Courts” September 29, 2004

Russell Cohen, an attorney with Heller Ehrman White & McAuliffe LLP, explains part of the legal strategy in bringing a civil case in the United States against a conspirator in the assassination of Archbishop Romero.

U.S. Ruling Offers Glimpse of Accountability in Case of Murdered Archbishop
By Susana Wappenstein

Last August, a Federal Judge in Fresno found Alvaro Saravia, a former captain in the Salvadoran air force, liable for his role in the 1980 murder of Archbishop Oscar Romero in San Salvador. Judge Wanger ordered Saravia to pay $10 million in compensatory and punitive damages to the unnamed plaintiff. He also ruled that the murder constituted a “crime against humanity,” that the Salvadoran government had systematically obstructed justice and named the late Roberto D’Aubuisson, founder of the ruling ARENA Party, as the mastermind behind Romero’s assassination.

Despite the general indignation at the time of the murder and the widely recognized importance of the case, this is the first time that someone has been held legally accountable for the Archbishop’s slaying. Two of the attorneys from the legal team that filed the successful lawsuit against Saravia discussed the case at CLAS and considered the broader impact of using the U.S. Court system to achieve justice in cases of human rights abuses overseas. Matt Eisenbrandt, from the Center for Justice and Accountability (CJA), and Russell Cohen, from the private firm Heller, Ehrman, White & McAuliffe LLP, insisted that such suits, while not eliminating impunity on their own, contributed to the creation of a public, legal record and the exposure of perpetrators of human rights abuses now residing in the U.S.

Archbishop Romero was killed in San Salvador on March 24, 1980 while celebrating mass. He was the target of right-wing death squads for his work documenting and denouncing widespread abuses and human rights violations by paramilitary groups organized by D’Aubuisson and sanctioned by the state. Eisenbrandt and Cohen recounted how Archbishop Romero became increasingly concerned with the rising tide of violence and murder against anyone who challenged the ruling elites. During the 1970s, against the background of Soviet–U.S. confrontation, the military across Central America became more reactionary as attempts at political or social reform were met with repression. As the leading human rights advocate in El Salvador, Archbishop Romero urged forces from the left and right to search for peaceful solutions. He publicly denounced and condemned human rights violations in his weekly homilies broadcast on national radio. But in his March 23, 1980 sermon, the Archbishop’s appeal reached a new level when he directly demanded that the soldiers stop the bloodshed. The next day, Archbishop Oscar Romero was himself shot dead, and the possibility of finding a nonviolent solution to the crisis in El Salvador receded dramatically.

After the murder, there was an escalation in violence and a descent into civil war that left thousands dead, at least one million displaced and the country in ruins. In spite of the significance of the murder and an overwhelming belief that death squads and the military were behind it, no one was ever brought to justice in El Salvador. It appeared that D’Aubuisson’s forces and the oligarchy’s interests which they represented had achieved their objective of silencing and terrorizing critics, thus establishing impunity for their actions. Eisenbrandt and Cohen described how, for example, the Salvadoran judge in charge of the Romero investigation barely escaped an assassination attempt himself. Impunity was further cemented when, in 1993, after peace accords were signed, the ruling ARENA Party passed an amnesty law that guaranteed that those suspected of human rights violations would not be prosecuted.

Impunity reigned in El Salvador. But in the U.S., the CJA sought legal action against Salvadorans suspected of human rights abuses in their home country but now resident here. During an earlier case brought in 2002 by the CJA against two retired Salvadoran generals living in Florida, the Center discovered that Alvaro Saravia, one of the key organizers of Archbishop Romero’s assassination, was living in Modesto, California. Saravia had already been implicated in 1987 by his driver, who declared in testimony that Saravia ordered him to drive the gunman to the church. A report by the UN Truth Commission in 1993 also named Saravia as one of the key organizers of the murder.

The challenge for the CJA was to build a legal case against Saravia, one which incorporated witnesses rather than relying solely on documentary evidence. Even in 2003 this was very problematic given the fear and intimidation that potential witnesses had experienced. According to Eisenbrandt and Cohen, a breakthrough finally took place when Amado Antonio Garay, Saravia’s driver — who, they found out, was living in the U.S. under the witness protection program — contacted one of the lawyers investigating the case and agreed to testify again. Using an antiquated U.S. law created to sue pirates, the CJA, with the pro bono support of Heller Ehrman White & McAuliffe, filed a lawsuit against Alvaro Saravia in the federal court in Fresno.

During the five-day civil trial that took place in late August 2004, which Saravia did not attend, the driver Garay again testified that he had been ordered by Saravia to take the murderer to the church to kill Archbishop Romero and that afterwards he heard Saravia report back to D’Aubuisson with the words “mission accomplished.” Additionally, the legal team representing the protected plaintiff in the case, wanted to demonstrate that the Salvadoran state was implicated. To prove this point they explained how state forces systematically obstructed the murder investigation and intimidated anyone involved in the case. Finally, to provide further evidence of damages, the lawyers described to the judge the incomparable social role Archbishop Romero had played in seeking a peaceful solution to the crisis in El Salvador, in addition to the importance that his theological teachings played. These claims were supported with declarations from different personalities and experts from around the world. Judge Wanger, clearly moved by the evidence, found Saravia liable for the murder of Archbishop Romero and ruled the killing a “crime against humanity.” He lamented that the law in civil cases only establishes monetary damages but, given this limitation, he awarded a $10 million judgment in favor of the plaintiff. Three cheers of “Romero, presente!” erupted in the courtroom.

The whereabouts of Saravia are unknown, and it is unclear whether the money will ever be collected. Yet calls to re-open the investigation of the Romero murder case and to repeal the amnesty law passed in 1993 have been renewed in El Salvador. The ultimate goal, suggested the two attorneys, is to push for criminal prosecutions in the countries where the violations have taken place. Even when this is unlikely, as in the Romero case, these suits are critical in the struggle for justice and accountability.

Russell Cohen, attorney at Heller Ehrman White & McAuliffe LLP, and Matt Eisenbrandt, attorney at the Center for Justice & Accountability, presented their talk “The Archbishop Romero Case: Legal Accountability in U.S. Courts” on September 29, 2004.

Susana Wappenstein is a doctoral candidate in the Department of Sociology.

Matt Eisenbrandt (left), from the Center for Justice and Accountability, along with Professor Beatriz Manz and Russell Cohen, talk with students after the event.