El Salvador / Politics

State of Exception Confirms Divide between US Dems and GOP over Bukele

Carlos Barrera
Carlos Barrera

Wednesday, September 14, 2022
José Luis Sanz y Roman Gressier

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On Monday, the United States strongly criticized the human rights abuses committed under the state of exception in El Salvador during a special hearing convened by the Tom Lantos Human Rights Commission of the House of Representatives. The hearing exposed differences between Republicans and Democrats, as well as in Democrats’ ranks, over what strategy Washington should pursue amid President Nayib Bukele’s authoritarian drift.

“Some of the measures taken [by El Salvador] during the state of exception contradict established human rights norms,” testified Emily Mendrala, deputy assistant secretary of State for Western Hemisphere Affairs. “In private exchanges with the government of El Salvador, the Department [of State] has stressed the importance of respect for human rights, including guarantees of a fair trial,” she continued. “In a democracy, all those accused of crimes must face a transparent justice system.”

Scott Busby, deputy assistant secretary of State of Democracy, Human Rights, and Labor, underscored the hundreds of reports of arrests of innocent people carried out under the argument of fighting gangs, and questioned Salvadoran authorities’ assertions that cases are systematically reviewed in order to free the innocent. “Whatever current review mechanism is not working, or is working too slowly to be effective,” said Busby. “If [the state of exception] continues, we anticipate lasting impacts on human rights and the rule of law.”

Congressman James McGovern, a Massachusetts Democrat who conducted the hearing, took an even harder line, calling the state of exception “draconian.”

The congressman criticized Bukele’s policy of mass detentions, asserting that the total of more than 50,000 arrests in five months “has no equivalent in Latin America, not even in the worst days of military dictatorships.” He added, “It’s a number that makes me think of Turkey under Erdogan or Egypt under El-Sisi,” comparing the Salvadoran president with two heads of state internationally condemned for their repressive policy.

U.S. Representative Jim McGovern gives a press conference on June 22, 2022, in Washington, D.C., to call on the United States to sign a treaty to prohibit nuclear weapons. Photo: Brandon Bell/Getty Images/AFP
U.S. Representative Jim McGovern gives a press conference on June 22, 2022, in Washington, D.C., to call on the United States to sign a treaty to prohibit nuclear weapons. Photo: Brandon Bell/Getty Images/AFP

In a prudent tone, Busby told McGovern on multiple occasions that the State Department “shares your concerns.” The congressman dedicated almost two-thirds of the two-hour hearing to the testimony of representatives from the Lutheran organization Cristosal, the Due Process of Law Foundation (DPLF), Human Rights Watch, and Salvadoran journalist Héctor Silva Ávalos, all of them fierce critics of the state of exception and of Bukele’s strategy to consolidate power carried out over the past three years.

The Monday hearing, in fact, was convened at the request of an array of human rights organizations in El Salvador due to the lack of institutional recourse to denounce abuses in a country where the three branches of the state are controlled by Bukele. The Salvadoran government was not invited to testify.

Noah Bullock, the executive director of Cristosal, told the commission that the number of in-custody deaths during the state of exception has reached at least 76 and underscored the at least three dozen autopsies showing signs of torture and of possible “extrajudicial killings.” He testified that the Attorney General’s Office has not investigated any of the in-custody deaths, contradicting the Salvadoran government’s formal report to the United Nations on July 26, following the visit of a delegation representing six U.N. offices inquiring about patterns of human rights abuses detected under the emergency measures.

Bullock also reported that the organization has received reports from family members of “warnings from the authorities that they would suffer retaliation for speaking to human rights organizations, and specifically mentioning Cristosal.” The organization has documented 416 cases of detained family members who faced intimidation or violence for reporting abuse. Of these, 112 were threatened with additional arrests, and of this latter group 68 were detained in retaliation.

Internal Differences

At the hearing, Mendrala asked on behalf of the State Department for “bipartisan backing from Congress” in pushing for efforts to address violence in the hemisphere to be carried out “in a sustainable, ethical, and democratic fashion.” She avoided attributing solely to Bukele a longstanding practice —abuse of force by authoritarian governments— throughout the continent. It was also a subtle lamentation of the partisan divide that, since Joe Biden entered the White House, has hamstrung the U.S. government’s already complicated array of actions in Central America.

In recent weeks, sources in the State Department have told El Faro that possible differences with the Republican party, as one source asserts, “have not been an important factor” in the administration’s evident problems with forming a diplomatic strategy in El Salvador, “as opposed to what’s happening in Guatemala,” where “few Democrats even grasp the lobby that they have created in Washington” — a reference to business elites and the government of Alejandro Giammattei. But no Republicans were even present at the commission on Monday to hear Mendrala’s call for unity.

New Jersey Republican Christopher Smith, who co-chairs the commission with McGovern, had planned to participate but excused himself at the last minute and limited himself to sending a written statement that, while containing strong criticism of Bukele, minimizes his excesses and dedicates half of the space to denouncing repression in Nicaragua and questioning Democrats’ priorities in the region.

“We can all agree that President Bukele has failed to live up to the expectations many observers had of him as signaling a fresh break from the past and the traditional, corrupt parties of Left and Right,” he wrote in the declaration, adding that Bukele is “at his core a populist” who “one might liken to a Peronist,” a reference to the personalistic and trans-ideological movement founded in the 1940s by Argentinian President Juan Domingo Perón.

“Bukele continues to confound,” wrote Smith. “But that said, I do wonder why we are focusing on El Salvador and not its neighbor Nicaragua, where the abuses of rights are far, far more advanced and egregious.” “Bukele should be condemned for bullying the other two branches of government,” he said, but underscored that Salvadorans had, “in their wisdom,” granted him a supermajority in the legislature in 2021. “While one may not like the results,” he added, “El Salvador still is a democracy.”

Multiple top Republicans’ ambivalence toward Bukele can be partly attributed to his multimillion-dollar investment in Washington lobbying efforts to sway top party members to stay out of efforts to pressure his government. On July 28, in a Senate hearing to evaluate the candidacy of career diplomat William Duncan as ambassador to El Salvador, Florida Republican Marco Rubio said of the Bukele administration: “We don’t have to clap or celebrate all the stuff that we don’t think is good, but we have a national security interest that needs to be balanced.”

Smith’s absence from the commission hearing could be interpreted as another small diplomatic victory for Bukele. El Faro confirmed that the Salvadoran Embassy sent the congressman a formal complaint on September 9, calling on the commission to “consider including in the panel a more balanced perspective,” offering to propose names, and protesting that it had accepted as a valid source El Faro’s investigation revealing that the spike in homicides in March, cited as the reason for the state of exception, was sparked by the collapse of negotiations between the Bukele administration and the gangs.

The letter offered the congressman a meeting with Ambassador Milena Mayorga to “clarify the government’s position” and “the facts distorted by misleading information.” That same day, Mayorga took to social media to protest the inclusion of journalist Héctor Silva as a panelist.

In a written response, Smith’s office pointed to their Democrat colleagues on the committee as responsible for selecting the panelists and expressed that they share the Embassy’s concerns about “the lack of balance in the witnesses,” though they added that “there are aspects of the policy and conduct of the government [of El Salvador] that can be legitimately questioned.” El Faro asked the office if the ambassador’s letter had motivated the congressman’s absence from the hearing, but did not receive a response.

Constitutional lawyer Leonor Arteaga, who testified on behalf of DLPF, one of the organizations to request the hearing, lamented Smith’s absence. “If the Republicans continue giving space or even a certain amount of backing to Bukele, he will cling to it,” she told El Faro. “It will give him oxygen for some time.”

“A pistol on the table”

There is a divide among Democrats, too, over U.S. policy in El Salvador. McGovern addressed his remarks on Monday “to those who withhold their criticism of the government of El Salvador saying that President Bukele’s actions are popular and that his approval ratings are high,” an evident allusion to those in the White House, State Department, and Congress who cite polling as a limiting factor for the United States to make unequivocal condemnations or apply tougher sanctions on El Salvador and government officials there. “Popular doesn’t mean right,” said McGovern.

Tiziano Breda, Central America analyst for the International Crisis Group, argues that the hearing’s target audience “may be the Biden administration itself, to spur more proactivity in diplomatic efforts and possible measures.” He adds, “Until now the Biden administration has been quite cautious in expressing itself and hasn’t had a clear strategy.”

Journalist Héctor Silva, who testified at the hearing, agrees. “In general, the Biden administration doesn’t know what to do in the Northern Triangle. There are two visions in the administration and in Congress: one is of reconciliation, that given the matters of China and Russia, which have enormous weight in Washington, they can’t burn all of their bridges,” Silva told El Faro. “The second argues that, unless they more directly attack the problem, El Salvador and Guatemala will replicate the scenario of Nicaragua. This faction, though, doesn’t have a clear path and is still debating how to use the tools that the U.S. possesses.”

McGovern is in the second group. The congressman asked the White House to exert more pressure on Bukele through multilateral institutions, commerce, travel warnings, and audits of U.S. aid money and loans. At the hearing he was visibly worried about the possibility that the more pragmatic in the Biden administration could win out.

For example, he openly criticized the State Department’s most recent report on international drug interdiction efforts that stated that the democratic decline in El Salvador does not affect the countries’ partnership in U.S. anti-drug efforts. “I was shocked by the assertion in the 2021 international narcotics control strategy report that democratic backsliding has had limited impact on El Salvador's ability to act as a cooperative and willing partner for the United States counternarcotics efforts,” he said. “I would have thought that gutting the rule of law, as Bukele has done systematically since taking office, would be an obvious blow to serious efforts to deal with El Salvador’s entrenched gangs.”

Salvadoran officials claimed to have made just under 27,000 arrests during El Salvador
Salvadoran officials claimed to have made just under 27,000 arrests during El Salvador's state of exception through May 9, making for an average of over 600 per day. Photo: Víctor Peña/El Faro

The organizations who testified in the hearing adopted the same stance as McGovern. The interim Americas director for Human Rights Watch, Tamara Taraciuk, called on the United States to “send a clear-cut message that it will not be an ally to governments that do not respect judicial independence, and that continuing attacks on the courts and widespread human rights violations as those being committed in El Salvador will carry consequences, including, if necessary, the suspension of military aid.”

The Biden administration has withdrawn the visas and frozen the assets of a dozen current and former officials in the Bukele administration accused of corruption or anti-democratic actions. In 2021, USAID cut funding to the National Civil Police, Attorney General’s Office, Supreme Court, and Institute for Access to Public Information following the illegal destitution of the Constitutional Court magistrates and attorney general. The announcement that those funds would be redirected to civil society groups and to support independent journalism would fuel accusations from Bukele, months later, that the United States and other countries had financed mass-anti-government protests that September.

In the Monday hearing, Deputy Assistant Secretary Busby underscored the creation of the Voices Program, announced by USAID Administrator Samantha Power at the Americas SUmmit in June, that will allot $42 million to “promoting digital democracy and freedom of expression, strengthen independent media, and counteract criminalization” in order to “protect, defend, and promote civic space in Central America.” In his testimony, Héctor Silva cited another journalist who argues that the state of exception is a permanent warning to critical voices: “It’s a pistol on the table, that even when it’s not pointed at you it reminds you that at any moment they can pick it up and shoot you.”

International Challenge

Despite the verbal hostilities between the two governments, the United States claims that it has maintained a line of communication with Bukele. Busby told the commission that, in the fifth consecutive extension of the state of exception in August, the Salvadoran government yielded to its requests to restore the right to free association. The rights to defense, presumed innocence, private communications, and to not self-incriminate remain suspended.

The State Department has yet to decide whether to certify El Salvador to receive U.S. aid, a decision that, by law, requires commitment to fighting corruption and impunity, transparency and institutionality, respect for judicial independence, and protection of the rights of civil society, the political opposition, and the press. According to documents published in the Federal Register, Honduras is the only government in northern Central America to have been certified thus far this year.

Other diplomatic delegations have kept silent about the numerous reports of arbitrary detentions and torture during the state of exception. This week Birgit Gerstenberg, the U.N. resident coordinator in El Salvador, drew intense controversy after the state newspaper Diario El Salvador drew from a statement she made to publish the front-page headline, “UN positively evaluates the state of exception.” Immediate criticism from human rights organizations forced Gerstenberg to issue a clarification, stating that while declaring a state of exception “is states’ sovereign decision,” “the measures should be framed by respect for human rights.”

Per government figures, authorities have arrested an average of 304 people per day since it was enacted on March 27. Human rights organizations have denounced constant arbitrary detentions and torture, like government use of pepper spray against detainees, food rationing, forced standing, invasions of private property, and due process violations. An investigation by El Faro found that hundreds of arrests were made on spurious grounds such as displaying “nervousness” in front of police officers or soldiers or having a police file for time already served or even for charges that ended in exonerations.

Bullock told the congressional commission that his organization has received 2,698 corroborated reports of official misconduct under the state of exception. “This experience has shown that the defense of Salvadorans accused of crimes under the state of exception is all but impossible,” he said. Cristosal also has reports of between 200 and 600 people who, at the time of their defense hearing, were absent from court.

Breda, from Crisis Group, agrees with Cristosal. He says that the hearing on Monday “is the result of the ineffectiveness of national authorities as well as the Inter-American circuit and the U.N. in opening spaces for certain changes in this government policy.”

Taraciuk, of Human Rights Watch, testified that the organization has documented at least seven cases of individuals with mental illness who were detained and accused of having illicit ties to gangs and insisted that there are systematic practices of deprivation of medical treatment to detainees with chronic illnesses and cases of detainees without access to food or drinking water. She called for “increased oversight mechanisms for existing and new loans so they contribute to protecting human rights.”

“They know what has been said here today,” said Taraciuk, in reference to member of the international community who have stayed silent, “but it’s not a priority when they talk about human rights in the region.” She added, “We’re at an inflection point.” After the hearing she tweeted: “The US has a central role to play in preventing El Salvador from becoming the region's next dictatorship.”

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