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A federal appeals court has overturned a $54.6 million verdict by a West Palm Beach, Fla., jury against two former Salvadoran generals who were accused of being complicit in the torture of political dissidents in the 1980s. A panel of the 11th U.S. Circuit Court of Appeals in Atlanta held that the case Juan Romagoza Arce, Neris Gonzalez and Carlos Mauricio v. Jose Guillermo Garcia and Carlos Eugenio Vides-Casanova should not have been heard three years ago because the 10-year statute of limitations on the claim should not have been waived in the first place. The 2002 verdict was the largest jury award ever in a contested action brought under the U.S. Torture Victims Protection Act of 1991. Many observers said the verdict signaled foreign commanders that they need to think carefully about their liability under U.S. law before ordering or allowing human rights abuses on their watch. The defendants live in South Florida — Vides-Casanova in Palm Coast near Daytona Beach and Garcia in Plantation. Gonzalez, a plaintiff, is a former lay church worker. Arce is a doctor and Mauricio is an agriculture professor. The three fled to the United States after they allegedly suffered torture at the hands of the U.S.-backed Salvadoran government during El Salvador’s civil war. The plaintiffs sued the former generals in U.S. District Court in West Palm Beach in February 2000 under the torture victims act and the Alien Tort Claims Act of 1789. Each alleged different theories of the case, ranging from crimes against humanity to arbitrary detention to torture, to cruel, inhuman and degrading treatment. The case was presided over by Judge Daniel T.K. Hurley. The case was brought in the United States because the defendants lived here and because the U.S. laws cited in the suit apply to improper conduct outside U.S. borders. During the July 2002 trial, Gonzalez testified at length 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 was born with multiple injuries and died two months later. Jurors wept as Gonzalez described her ordeal. The award consisted of $14.6 million in compensatory damages and $40 million in punitive damages. Before the trial, the plaintiffs argued for the waiver of the traditional statute of limitations that started to run when the offense was committed. While the laws in question specify no statute term, federal courts generally borrow statutes of limitation from state laws. The plaintiffs argued that the statute of limitations should extend 10 years not from the date of the alleged torture episodes, but from the later date of Jan. 16, 1992. That’s when the Salvadoran Peace Accords were negotiated under the auspices of the United Nations and judicial independence was restored in El Salvador. The plaintiffs argued that “extraordinary circumstance,” such as the domination of the Salvadoran judiciary by the military and the existence of a civil war in El Salvador, made it impossible for them to sue in that country before that date. On Tuesday, the 11th Circuit panel dismissed that argument as “irrelevant,” because the plaintiffs could have filed suit in U.S. courts while remaining in El Salvador. The panel added that “the plaintiffs failed to muster sufficient evidence of the defendants’ involvement” in the plaintiffs’ failure to sue in American courts and relied to an excessive degree on “the ambient situation” in El Salvador. The appellate ruling, written by Judge Gerald Tjoflat, said the statute of limitations should not have been waived because the defendants did nothing wrong in consistently denying “their personal responsibility for human rights abuses in El Salvador.” Tjoflat’s opinion also represented the views of Judges Anne C. Conway and Ed Carnes, the other members of the panel. “Obviously, this is a real bummer,” said West Palm Beach lawyer James K. Green, who represents the plaintiffs in conjunction with Peter Stern of the Tokyo office of San Francisco’s Morrison & Foerster. “We may apply for a rehearing en banc or we may apply for a writ of certiorari to the U.S. Supreme Court.” Green challenged the 11th Circuit panel’s view of the facts in the case. “We think there was not just a pattern of denial, there was a pattern of deception,” Green said. “The defendants never denied the allegations.” But Coral Gables attorney Kurt Klaus Jr., who represents the generals, said the plaintiffs “had no evidence directly linking my guys to this. There was no physical proof that they were tortured except for their testimony.” “I don’t know if they were tortured or not,” Klaus said. “But my guys had nothing to do with it. These guys are not bad guys. [They] were doing everything they could to bring democracy to that country.” Klaus chided the plaintiff lawyers as “knuckleheads” who will pursue the case on appeal because “they have unlimited funds.” The plaintiffs have brought to the case significant resources from the Center for Justice and Accountability in San Francisco, a group devoted to stopping human rights abuses worldwide and which contributed about $500,000 to present the case. In August 2002, Klaus told the Miami Daily Business Review that “my guys did whatever they were told to do by the U.S. advisers. 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.” The Romagoza case is seen as significant in shaping an important and emerging area of international human rights law. The key issue, argued intensely in the arguments over jury instructions in 2002, 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. Green said he will consult with Stern on how to proceed. The plaintiffs have three weeks to apply for a rehearing and 90 days to petition for certiorari. “Getting the appeals court to correct itself is less final that petitioning for cert, but in many ways it’s easier,” Green said. “While it’s true that this decision conflicts with a decision from the 9th Circuit and, therefore, we have a conflict in federal rulings, the U.S. Supreme Court accepts only one case in a hundred.”

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