Monday, June 2, 2008

Death of a Champion: William Ford (1936-2008)


William Ford died over the weekend of esophageal cancer. Bill, a lawyer, was the brother of Ita Ford (far right), one of the four churchwomen raped and murdered in El Salvador on December 2, 1980. On that date, Ita, a Maryknoll sister, and three companions—Maura Clarke, also a Maryknoll (immediately below); Jean Donovan, a Catholic laywoman (below left); and Dorothy Kazel, an Ursuline nun (below far left)—were returning home from the airport after the two Maryknolls had attended a conference in Nicaragua. They were stopped by members of the Salvadoran National Guard who may have been waiting for them. The women were taken to an isolated spot, raped, killed and then buried in a makeshift grave (below right).
(Photo credits & biographies of the churchwomen are here). The women's bodies were exhumed by the U.S. Ambassador Robert White, a Carter appointee and staunch critic of the military regime in Salvador.


Working with Human Rights First, which was then called the Lawyers Committee for Human Rights, Bill worked tirelessly to ensure some measure of justice for the deaths of the four women. He succeeded in getting key documents declassified and released. He also helped to convince Congress to launch a fuller investigation into events in El Salvador (map left). Due to pressure from the U.S. Government, five National Guardsmen were eventually prosecuted and convicted of the crime. On one of many research trips to El Salvador, Bill uncovered evidence that the convicted Guardsmen were acting pursuant to superior orders when they murdered the churchwomen, although it was unclear how high up these orders went. Notwithstanding this evidence, the Salvadoran Government undertook no further investigation of these allegations.

Bill and others eventually discovered that two former Ministers of Defense of El Salvador had retired to Florida: General Jose Guillermo Garcia, who was Minister at the time of Ita’s death, and General Carlos Vides-Casanova, who was head of the National Guard at the time (photos right). In the face of entrenched impunity in El Salvador, Bill brought suit in federal district court against the two men under the Torture Victim Protection Act, which provides a cause of action for the legal representative of victims of summary execution.

Bill was adamant that the trial should not focus only on the death of four U.S. citizens when over 70,000 Salvadorans lost their lives during the Salvadoran civil war. Accordingly, the Center for Justice & Accountability brought a parallel suit against the two Generals on behalf of three Salvadoran refugees who had been detained and tortured in El Salvador by members of the National Guard. (I was a staff attorney with CJA at the time and eventually brought the case with me to Morrison & Foerster, LLP, who took the case pro bono).

Both sets of plaintiffs brought suit on the basis of the superior responsibility doctrine, which states that superiors—both military and civilian—can be held liable for the criminal acts of their subordinates if they knew or should have known about such acts and failed to prevent or punish them. The churchwomen’s case was in part premised on the defendants’ failure to adequately punish the individuals accused of murdering the four churchwomen by improperly delegating the responsibility for investigation to subordinates and then by impeding that and subsequent investigations up the chain of command. The Salvadorans’ case was similar, but also alleged the failure to prevent abuses. One plaintiff, Juan Romagoza (right), alleged that defendant Vides Casanova had been in the room when he was tortured and had also seen Juan, virtually broken, being carried out of the detention center by loved ones.

In November 2000, the Ford jury rendered a verdict that the generals were not liable for the crimes. Based upon statements members of the jury made to journalists after the trial, it appears that the jury was not satisfied that the two generals had exercised “effective control” over their subordinates given the high degree of chaos in the country occasioned by the civil war and the primitiveness of the military. See, e.g., Susan Benesch, Salvadoran Generals on Trial: Command Responsibility in a Florida Courtroom. Plaintiffs in Ford appealed the jury instructions setting forth the elements of command responsibility, arguing against the effective control standard for establishing the relationship of subordination between the direct perpetrators and the superior defendant. The Eleventh Circuit Court of Appeals, in an opinion that extensively considered contemporaneous international precedent emerging from the International Criminal Tribunal for the Former Yugoslavia, found no error in the instructions given by the trial court. Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002).

I witnessed the churchwomen’s trial, and tried the Romagoza case along with my colleagues at MoFo and our local counsel, Jim Green. We made a point of putting evidence on that El Salvador was not a failed state, but a police state, in which violence was tightly controlled to exact social control. We demonstrated that the violence was also finely attuned to conditions in Washington. As Congress began to threaten to reduce military aid to El Salvador, the violence would decrease. When Congress became preoccupied with other things, the violence would escalate. Our strategy worked, and the jury awarded the plaintiffs $54 million in punitive and compensatory damages. The verdict was upheld on appeal and has been partially executed. (Above: plaintiffs Neris Gonzales and Carlos Mauricio celebrate the verdict).

Collectively, the Romagoza and Ford cases are significant as the first modern command responsibility cases in which a defendant testified in his own defense and was judged by a lay jury, as opposed to by a professional judge or military officers staffing a military tribunal. These are also the first cases in which a domestic tribunal closely considered the modern doctrine of command responsibility as articulated and clarified by the international criminal tribunals. Furthermore, the Romagoza case is the first case in which civil plaintiffs proved liability under the doctrine of command responsibility in an adversarial setting under the federal rules of evidence and procedure. As such, the Romagoza proceedings themselves deserve close attention for what they can teach about the application of the doctrine and the strategic and evidentiary challenges it presents. These challenges are discussed here: Beth Van Schaack, Command Responsibility: The Anatomy of Proof in Romagoza v. Garcia, 36 U.C. Davis L. Rev. 1213 (2003).

The two cases are featured in a PBS film by Gail Pellet (left) entitled, Justice and The Generals. The film won the 2002 Amnesty International Film Festival (Vancouver) and the 2003 Award of Merit in Film from the Latin American Studies Association.

Although Ita’s case was not successful, Bill’s work laid the groundwork for the Romagoza case to eventually prevail. When the Romagoza verdict was announced, Bill said, ''It may be fitting that the winning plaintiffs were Salvadoran. The churchwomen would approve of that fact.''
He will be missed.

2 comments:

Rebecca Bratspies said...

Beth

thanks so much for this post, and for your great work in the case you describe! the US support for the violent and murderous regime in El Salvador remains a painful blot on our national human rights record.

jim travers said...

As both client and classmate,I was advantaged to see Bill's extraordinary tenacity for what was right,truthful and compassionate .....guts don't come in a higher standard.Jim travers.