El Mozote Judge to Administration: “Judicial Decisions Aren’t Negotiated, They’re Imposed.”
An emissary from the Nayib Bukele administration argued before the court that revealing “secret” military documents related to the 1981 El Mozote massacre would endanger “national security.” The position, which is the same as that of defense attorneys for accused military members, as well as of prior administrations, was rejected by the judge, who set September 21 as the start date for document searches.
The Nayib Bukele administration has conveyed to Judge Jorge Guzmán, who reopened and has presided over the investigation into the 1981 El Mozote massacre, that “there are secret military planning documents that cannot be furnished by the Defense Ministry” because the armed forces safeguard “greater collective goods, like national security, the defense of the state, and the sovereignty of El Salvador.” This position was presented by attorney José Ángel Pérez in a hearing before the Examining Court of San Francisco Gotera on August 28, which was meant to coordinate the logistics of the military archive inspections that had been ordered previously.
Judge Guzmán rejected the contention that revealing military planning materials from 40 years ago would have any bearing on national security interests and clarified to the administration’s representative that the hearing was not convened to discuss whether the archives would be opened, but how the searches would be conducted. “The court’s decision, Mr. Chacón, has been made. What follows is its execution. Your objections are noted, however this does not prevent the judicial order from being upheld. If what you are espousing is the administration’s position, I would ask that you seek a reconsideration,” said the judge. “Judicial decisions aren’t negotiated or bargained. They are imposed,” he added.
In invoking the specter of national security, the Bukele administration was adopting the same position on military archives that past administrations have taken for four decades—be they military juntas, social democratic leaning, right or left. Bukele has gone from promising, in a November 2019 press conference, unrestricted access to any military documents that could serve as evidence in the El Mozote investigation — “If the judge asks for A through F, we’ll go to Z,” he said — to conditioning access based on supposed concerns over “national security and state sovereignty” in the August 2020 hearing, as expressed by Pérez Chacón.
Protecting national security was the same justification deployed by, for example, Minister David Munguía Payés when he prevented the Attorney General’s office from taking custody over military archives on May 30, 2014, right at the cusp of the presidential turnover. At that time, the Attorney General was conducting an investigation into arms trafficking. Since the case was reopened in June 2016, the Salvador Sánchez Cerén administration responded to Judge Guzmán’s requests on five separate occasions by claiming that requested military documents did not exist. On November 15, 2019, the Bukele administration also told the judge that the Ministry of Defense did not possess the military archives, the same response given by Arena governments since 1990, when the El Mozote criminal investigation first began. There was one concession: Bukele’s government stated that it would allow physical inspections in military installations.
Judge Guzmán took them up on this offer and, on June 15 of this year, ordered sworn experts to search the archives at eight military sites. The order stems from the judge’s suspicion that the Army is concealing information that could be useful in the effort to discover the truth behind the military operation that resulted in the death of nearly a thousand peasants, half of them children. In the order, the judge pointed out “irregularities” such as the fact that Atlacatl Battalion commander Colonel Domingo Monterrosa’s official service record does not contain his participation in the Morazán Rescue Operation, which culminated in the massacre.
Despite the complaints raised by Chacón, the general posture towards allowing inspections of the military sites remains. For his part, Judge Guzmán reminded administration representatives that they don’t really have a say. “All persons must submit to the authority of the Constitution and the statutory framework, whatever role they may serve in. Judicial decisions must be complied with, as they are not made arbitrarily,” said the judge.
The hearing notice compelled the appearance of the president’s private and judicial affairs secretaries, the defense and culture ministers, the director of the National Civil Police, the president of the Institute for Public Information (IAIP), and the human rights prosecutor, though the judge permitted them to send representatives. In addition to Chacón, in attendance were Colonel Carlos Vanegas García and Shirley Yanci Avelenda Cordero (on behalf of the Defense Ministry), Luis Gerardo González Cañadas (on behalf of the Ministry of Culture), René Valiente Araujo (on behalf of IAIP), Jorge Salomón Cuadra Gonzáles (on behalf of the National Police), and Ana Milagro Guevara de Medrano (on behalf of the prosecutor’s office).
Also present in the courtroom were José Cruz Vigil and Óscar René Tobar Claros, who were representing the victims, “the most important part of the penal process,” according to Judge Guzmán. Two delegates from the United States embassy were also among the general public, as “international observers monitoring this case and the justice system,” as one of them told El Faro. The embassy has been observing the case for years. The U.S. government was involved in the financing and training of the troops that conducted the El Mozote massacre, in the coverup of the case, and, more recently, in the declassification of relevant documents.
Judge: “Knowing the Truth about This Event is Imperative”
This September will mark four years since the El Mozote case was reopened. The first criminal complaint occurred in this same court on October 26, 1990. The case moved forward in fits and starts and in spite of the state’s obstructions until 1993, when it was closed following the passage of the amnesty law. That amnesty law was declared unconstitutional in July of 2016, two months prior to Judge Guzmán taking up the cause again. Through the 23-year interim, the victims never gave up and achieved a ruling against the Salvadoran state from the Inter-American Court of Human Rights in 2012.
Since 2016, Judge Guzmán has overseen interviews of over 43 surviving witnesses, forensic experts, and military experts, as well as petitions for further information, an arduous process that the Supreme Court acknowledged in 2019, when it lightened his workload by allowing him to stop also presiding over unrelated civil trials. This year, the trial, as with almost everything else, has been delayed by the suspension of judicial processes related to the Covid-19 pandemic. For example, it took the judge two months to swear in the experts that will undertake the site inspections because one of them, Guatemalan Velia Muralles, is outside the country and the borders remain closed until mid-September. She was sworn in on August 18 in a virtual session, following several objections from defense attorneys, who insisted on an in-person process, which would have delayed the trial even further. In a case like El Mozote, the timing is key. Just this year, four witnesses and one defendant have passed away. Of the 28 officials indicted, only 13 remain alive. For now.
This context helps explain the judge’s stern response to the defense attorneys’ arguments during the initial phase of the hearing. Attorney Néstor Pineda, for example, opposed Muralles participating as an expert virtually from Guatemala, via a screen installed in the courtroom, because she wasn’t located at the Salvadoran embassy in Guatemala.
The judge dismissed all these arguments, saying these were matters resolved in prior decisions. “A previous resolution ordered the inspections, and that remains in effect. There is no discussion to be had,” he warned. Despite the attorneys’ insistence, he remained unfazed, and ordered them to take their seats and quit attempting to stall the proceedings.
“What’s brought us here now is, to my mind, one of the most important tasks: the search for documents,” said Judge Guzmán. “There is a lot of relevant information that could go a long way to clearing up the facts, but which was not provided by the Defense Ministry. I have been very pleased by the president’s willingness to cooperate. Judicial decisions aren’t negotiated or bargained. They are imposed. Knowing the truth about this event is imperative,” he added.
“There are people who have been awaiting justice for 39 years. They lost children, parents, they were displaced. Justice has been denied and all of us in this society are responsible for that,” said the judge. He also brought up a 2018 resolution in which he designated the crimes as crimes against humanity, stating that as such the case transcended mere national interest.
Later, defense attorney Lisandro Quintanilla attempted to have the inspection orders nullified, claiming that the Constitution prohibited the disclosure of secret military planning documents, despite the fact that the article he cited (Article 168) deals with granting access to the Legislative Assembly, not judicial investigators. In the last of these skirmishes, Judge Guzmán told Quintanilla that he was being “very patient,” prompting Quintanilla to exclaim “let the record reflect that you are violating the rights of the defendants,” before he sat down.
The presidential envoy took a position identical to Quintanilla’s. “We’re talking about the inspection of extraordinarily sensitive material, and when we refer to military planning documents, there are some that our Constitution itself deems to be secret,” said attorney Pérez Chacón. “There must be a methodology that can establish a limit for the pertinence of information being sought in relation to the present criminal investigation, and restrict this court’s access to material that would compromise national security and the defense of the state, as well as the state’s very sovereignty, which the Constitution designates our Armed Forces as responsible for,” he said.
In actuality, the limitations requested by the administration were already established by the initial inspection orders. The searches aren’t comprehensive. The resolution clearly identifies the archives to be searched and the relevant documents sought: the “Rescue Operation military plans of 1981;” “national military operations plans from 1980 to 1984;” and “wartime national military planning documents and their attachments.” Also sought are “military policies during the war;” as well as military rules, executive orders, and reference and operations manuals; “general orders from the Joint Chiefs of Staff,” “analyses of military intelligence;” “periodic reports on operations, supervisory and operations control reports, evaluations of deployable resources;” and other “administrative documents related to” the operations in El Mozote and nearby towns and villages.
The judge rejected the administration’s claim to secrecy by citing the Public Information law, which stipulates that “exemptions cannot be invoked during investigations of grave human rights violations or crimes of international significance,” such as in the case of El Mozote.
“There is no basis to deny access,” said the judge, calling attention to the fact that the Defense Ministry had already provided military documents from 1985 and 1986. These documents, he said, “don’t have any particular significance today, beyond clarifying human rights violations.” Colonel Vanegas, the Defense representative, also queried the judge on whether the “Guatemalan expert would have access to information related to national security.” The June 15 order makes clear that Muralles will be the group’s coordinator, but the judge reiterated that fact and said that there is no prohibition on the participation of foreign experts. He also pointed out that Muralles—who has worked on the historical archive of the Guatemalan National Police—isn’t connected to any military institution in that country, as Colonel Vanegas had insinuated.
The judge set the inspections to take place between September 21 and November 13. The teams will work from 8am to 4pm, with Judge Guzmán overseeing the shifts. Afterwards, the experts will have one month to prepare their report, with a deadline of December 11, which is coincidentally the 39th anniversary of the massacre.
Searches in different units of the Armed Forces General Archive will take place from September 21 to October 16. Inspections of the Air Force’s and the “Colonel Óscar Osorio” Artillery Brigade’s archives will happen from October 19 to 23. Searches of the Armed Forces Press Committee (COPREFA) archive are set for October 26 to 30. Finally, between November 2 and 13, the experts will go west to examine the archives of the Third Infantry Brigade in San Miguel and Military Detachment number 4 in San Francisco Gotera.
The judge has ordered the administration and the Defense and Culture ministries to prepare a list of personnel who will facilitate the inspections at each site, and provide it to the court. He also asked the National Police for a 24-hour security detail and issued “preventive and precautionary” instructions to all personnel in charge of these archives, to prevent any from being moved, hidden, or replaced.
*Translated by Felipe De La Hoz
FI name: September 2020