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For West Palm Beach, Fla., attorney James K. Green, the most emotional point of the recent civil trial of two former Salvadoran generals accused of complicity in the torture of civilians in the 1980s was the testimony of one of his clients, plaintiff Neris Gonzalez. For a full day on July 10, in Judge Daniel T.K. Hurley’s federal courtroom in West Palm Beach, Gonzalez poured out her story of how she was kidnapped, gang-raped and tortured for two weeks in December 1979 and January 1980 by Salvadoran National Guardsmen under the command of Minister of Defense Jose Guillermo Garcia and National Guard Director Carlos Vides Casanova. The lay church worker, then in her mid-20s, was pregnant at the time. Her son subsequently was born with multiple injuries and died two months later. Jurors wept as Gonzalez described her ordeal. “I tried to steel myself,” says Green, a class action attorney and past president of the American Civil Liberties Union of Florida. “I’ve done death penalty cases, class actions with thousands of mental patients abused in institutions,” he says. “But I’ve never had to listen to or present anything like what these plaintiffs went through.” As a result of that and other compelling testimony, on July 23 the three-man, seven-woman jury in Romagoza v. Garcia awarded Gonzalez and fellow torture victims Juan Romagoza Arce, a doctor, and Carlos Mauricio, an agriculture professor, $54.6 million in damages against Garcia and Vides for their role in the brutal treatment of the three plaintiffs during El Salvador’s bloody civil war in the 1980s. The award consisted of $14.6 million in compensatory damages and $40 million in punitives. Romagoza testified that he saw Gen. Garcia in the camp where the torture was conducted. As co-lead counsel with Peter Stern of San Francisco-based Morrison & Foerster, Green won the largest jury award ever in a contested action brought under the U.S. Torture Victims Protection Act of 1991. Larger judgments have been won by default. Many observers said the verdict sent a signal that foreign commanders need to think carefully about their liability under U.S. law before ordering or allowing human rights abuses on their watch. On the losing side was Coral Gables, Fla., solo attorney Kurt Klaus Jr., who represented the generals by himself. Klaus was thoroughly outmanned and outspent by the plaintiffs’ side, which reportedly spent $500,000 to present the case and which, unlike the defense, was well-equipped with high-tech trial exhibits. Even though he lost the case, Klaus says that “intellectually and professionally it was extremely rewarding. In fact, it was so much fun that when it was all over, I told my wife I might look for a position with the International Criminal Court.” On Wednesday, Judge Hurley denied Klaus’ motion for a new trial. No appeal of the verdict has yet been filed, though Klaus is considering one based on the Torture Victims Protection Act’s statute of limitations, which was waived in this case. He’s also considering suing the governments of El Salvador and the United States for indemnification. “My guys did whatever they were told to do by the U.S. advisers,” he says. “Anybody who thinks any different is crazy. That government couldn’t have stood for five minutes if the U.S. wasn’t pumping money into it.” Both Green and Klaus note that the Romagoza case highlights a major inconsistency in U.S. policy concerning legal accountability for human rights abuses. “It’s an interesting paradox,” Klaus says. “Foreign people can sue foreign people in our courts, but we won’t let U.S. citizens face charges in international courts.” EMERGING LAW For both lawyers, the case presented a rare opportunity to participate in shaping an important and emerging area of international human rights law. The key issue, wrangled over most intensely in the arguments over jury instructions, was how to define the “effective control” element of the doctrine of “command responsibility.” As interpreted by the courts, the torture victims law requires that plaintiffs prove that superior officers targeted in such lawsuits be shown to have had command responsibility for and effective control over the torturers. That command responsibility doctrine, which holds that military leaders have an affirmative obligation to seek out and prevent human rights abuses by their troops, was at the heart of the claims brought against the generals in Romagoza and in another federal lawsuit filed against them in West Palm Beach, Ford v. Garcia. That latter case was filed by the families of four U.S. churchwomen murdered by Salvadoran National Guardsmen in 1980. In November 2000, the generals were acquitted in Ford because, as the jurors later explained, the plaintiffs’ attorneys, Robert Montgomery of West Palm Beach and Robert Kerrigan of Pensacola, Fla., failed to prove that the generals had effective control of their troops — a necessary component of command responsibility. A key fact was that the soldiers who committed the murders were in a remote outpost far from where the generals were located. ENTER GREEN Green was asked to take on the Romagoza case in 1999 by Paul Hoffman, legal director of the Southern California ACLU and a former president of Amnesty International USA. “It sounded interesting,” says Green, who filed the Romagoza claims shortly after Hoffman contacted him. Green, who grew up in Spain and still speaks passable Spanish, brought a knowledge of Latin America to the case, having covered the U.S.-assisted military coup against Chilean President Salvador Allende in 1973 as a journalist in Chile. He had some familiarity with military procedures as well, from his early education at Culver Military Academy in Indiana and through the experiences of his father, an Air Force colonel and Vietnam combat veteran. Klaus, who has focused on family law and criminal defense in his career, got involved through his Colombian-born wife, Clara, who was a college classmate of Gen. Vides’ daughter Marta. As a result of the two women’s friendship, he was approached in early 1999 to defend the former Salvadoran generals, first in Ford and later in Romagoza. Vides and Garcia had emigrated from El Salvador in 1989 and settled in Florida, where they were discovered 10 years later by the New York-based Lawyers Committee for Human Rights. The committee then joined with the families of the slain U.S. churchwomen to file suit against the generals under the U.S. Alien Tort Claims Act of 1789 and the 1991 Torture Victim Protection Act, which provide civil remedies for victims of human rights abuses. Because Vides lives in the Daytona Beach area and Garcia in Plantation, Fla., the courts split the difference and assigned the Ford suit to Judge Hurley in West Palm Beach. Romagoza differed from Ford only in its plaintiffs, who are three Salvadoran survivors of torture by the National Guardsmen. Green did not represent the plaintiffs in the Ford case. COMMAND RESPONSIBILITY But both Green and Klaus came into Romagoza with knowledge gained from the Ford lawsuit. They realized that the case would turn on the jury’s understanding of command responsibility and the question of effective control. “I went with the same defense [as in Ford]: We don’t know who actually did it or how my guys could have controlled them,” says Klaus, whose low-key, Everyman style succeeded in convincing the Ford jurors that the chaos in El Salvador in 1980 prevented the generals from exercising effective control over their troops. Klaus acknowledges that Green and his clients in Romagoza clearly benefited from the lessons of the Ford case, as well as from the jury instruction guidelines handed down April 30 by the 11th U.S. Circuit Court of Appeals when it ruled on the plaintiffs’ appeal in Ford. The appellate court rejected the families’ argument that the generals should bear the burden of proving that they lacked effective control. “In the [ Ford] case, no one knew what the hell the jury instructions were going to be,” Klaus says. “That was much more of a crapshoot for everybody. It was an easier case for me.” But in Romagoza, everyone “already knew what the issues were and what the jury instructions were going to be,” Klaus explains. “[The plaintiffs] could focus on the question of effective control.” Klaus notes that Green and his co-counsel brought in a military expert on chain of command issues, as well as a historical scholar who testified that communications and transportation in El Salvador were functioning adequately at the time of the plaintiffs’ torture experiences, allowing the generals to exercise authority over the Guardsmen. Unlike in the Ford lawsuit, the Romagoza case also was helped by powerful, graphic testimony from living survivors. JURY INSTRUCTIONS FIGHT Green agrees that he capitalized on the lessons learned from the previous trial. “ Ford showed that command responsibility was difficult to explain legally and factually to the jury,” Green says. As a result of that experience, Green says, he and his co-counsel took great pains to work out the jury instructions on that issue. “This is only the second jury trial where the [command responsibility] doctrine was hammered out as part of the jury instruction,” he says. “That took many hours every evening after the jury went home for the day.” Green was particularly pleased that Judge Hurley’s jury instructions in Romagoza gave the effective control concept less prominence than in his Ford instructions. In Ford, the term “effective command” is included in two of the three elements of the command responsibility doctrine. In Romagoza, the judge laid out four elements of the command responsibility doctrine, none of which mention effective control; he relegated the concept to a subsidiary paragraph. Green and his team pressed Hurley for jury instruction language that included a presumption of effective control by the generals. Green’s argument to the judge drew on his ACLU experience with police misconduct lawsuits. In those cases, he had filed suit against police officials for the misdeeds of street officers, which raised many of the same issues of command responsibility and effective control as were raised later in the Salvadoran general cases. Green argues that Hurley and the 11th Circuit should have applied the same doctrine to the Salvadoran military cases that the courts have applied to police cases — that commanding officers are presumed to have effective control and bear the burden of proving otherwise. “The official relationship of generals to their troops is enough to make a prima facie case for effective control,” Green explains. “If the other side wants to come forward with an affirmative defense to show they lacked effective control, that these were rogue troops, that would be the proper allocation of the burden.” But Klaus says that Judge Hurley was right, based on “common sense,” to reject Green’s argument. “Whenever you hold one person responsible for what another person did, that’s an affront to my sensibilities,” he says. “God gave us free will and gives us responsibility for what we do, not for what others do.” Green and Klaus both feel that the Romagoza case will help clarify the command responsibility doctrine of international human rights law. But both also advocate refinements. For example, both sides in the case proposed to Hurley, unsuccessfully, that the Romagoza jury instructions should include a list of factors for jurors to consider in evaluating the generals’ effective control. Instead of listing factors, Hurley attempted to explain effective control to the jury by coming up with a variety of different phrases for the concept. In Klaus’ view, “We just went around in a circle, ‘Command means actual control means material ability’ and so on.” In the future, he predicts, courts may order jurors to consider the relationship of the commander and torturer, the location of the human rights violation, as well as other factors in deciding whether the commanding officer had control of the troops. ‘TORTURER’S LAWYER’ Since the Romagoza verdict, Klaus has accepted another major international human rights case. Last week, he was hired to defend Juan Lopez Grijalba, a former Honduran military chief accused of the murder and torture of Honduran civilians in the 1980s. Grijalba, who has been living in the United States since 1998, was arrested by the U.S. Immigration and Naturalization Service in April, and is being held at Krome Detention Center in Miami awaiting deportation proceedings. Klaus will defend Grijalba in a Torture Victims Protection Act claim brought on behalf of six former Honduran citizens, four of whom now live in the United States. The case was filed by the Center for Justice and Accountability, a San Francisco-based human rights organization that aided the plaintiffs in Romagoza. Klaus says he’s already busy preparing defenses and motions to dismiss on Grijalba’s behalf. Klaus — who describes himself as “a liberal guy” who attended a Quaker high school in New Jersey where “it was part of my curriculum to go to peace demonstrations” — says he’s not worried about becoming known as “a torturer’s lawyer.” “I’m a very religious person,” he says. “I don’t feel I need to explain anything to people as long as I’m all right with God.”

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