19 Dick. J. Int'l L. 475, *
Timothy J. Kepner
The mountains of El Salvador used to harbor and protect the small village of El Mozote. At one time El Mozote used to be a place where men, women, and children lived together peacefully while working hard to sustain their reasonable quality of life. However, on December 11, 1980, during the El Salvador civil war, the peace and tranquility of this small village was shattered. After engaging in a conflict with guerrillas in the vicinity, the Atlacatl Battalion, a battalion of the El Salvador Army, entered the village. 1 After spending the night in the village, the soldiers of the Atlacatl Battalion forced the villagers out of their homes, and proceeded to torture, interrogate, and execute the men. 2 After eliminating the adult males of the village, the soldiers then separated the women from the children. 3 The soldiers then systematically executed the women before slaughtering the children. 4 Rufina Amaya, a woman who survived the El Mozote siege, has described the events:
There were soldiers on both sides. Then they moved away to see the women kneeling down on the ground to pray. They killed all of them. Not a single one of them survived. Just me, by the grace of God. I hid under a tree. When I heard [*476] the screams of the children, and I knew which ones were mine, they were crying "Mommy, they are killing us.' 5
In the end, the soldiers of the Atlacatl Battalion burned the village to the ground and massacred more than 900 men, women, and children. 6 Out of 143 bodies later identified in a lab following the massacre, 131 were children under the age of twelve, including three infants under the age of three months. 7
When horrific and terrible human rights abuses have occurred, such as the El Mozote massacre, the question of responsibility weighs on every person's mind. In regards to the deaths of the innocent men, women, and children at El Mozote, the most obvious parties responsible are the Atlacatl Battalion and the El Salvador Army. However, if the world were to hold only these two parties responsible for the El Mozote massacre, responsibility would not be truly assessed because in the shadows of El Mozote there lurks another responsible party with blood on its hands - the United States of America.
After an investigation into the El Mozote massacre, twelve soldiers were cited for the massacre. 8 Of these twelve soldiers, ten were graduates of the School of the Americas. 9 The School of the Americas ("SOA") is a training facility financed and operated by the United States with the mission of training Latin American soldiers. 10 However, the SOA has also received infamous recognition for the great number of SOA graduates who have committed human right abuses. 11 Besides the El Mozote massacre, SOA graduates have played key roles in nearly every coup and major human rights violation in Latin America in the past fifty years. 12 In fact, Latin American nations with the worst human rights records have consistently sent the most soldiers to the SOA. 13 Martin Meehand, a Congressman from Massachusetts, has noted "if the SOA held an alumni association meeting, it would bring [*477] together some of the most unsavory thugs in the hemisphere." 14 There have been so many despots trained at the SOA that it has earned numerous nicknames including "School of Coups," "School of Assassins," and "School of Dictators." 15
The United States government and other defenders of the SOA have argued that the SOA cannot be blamed for a "few bad apples" who commit human rights abuses. 16 The problem with this argument is the fact that the SOA curriculum has not only been weak in teaching a respect for human rights, but has, in fact, encouraged Latin American soldiers to torture and use other techniques that are considered violations of international law. The United States can no longer deny its responsibility and liability for the tortures, assassinations, massacres, and murders committed by the soldiers that it has trained.
The purpose of this Comment is to discuss the United States' liability in domestic courts for the human rights abuses committed by soldiers who received training from the SOA using the perspective of a hypothetical alien plaintiff. First, Part II of this Comment will discuss the background of the SOA, the legacy of some of its graduates, and the evidence that torture and disrespect for human rights are part of the SOA curriculum. Part III will then explore the legal complications the hypothetical plaintiff would face trying to establish and maintain jurisdiction in a Federal District Court when suing the United States under the Alien Tort Act and the Federal Tort Claims Act. Part IV will analyze the United States' liability for teaching torture and improper human rights training using reasoning and analysis from civil rights jurisprudence. Finally, this Comment will conclude with a brief discussion about Congress "shutting down" the SOA.
II. The School of the Americas
After World War II, the fear of communism became the driving force behind United States foreign policy. 17 According to George Kennan, the former head of the State Department's planning staff, the goal of United States foreign policy after World War II was not democracy, freedom, development, or human rights. 18 Instead, regional stability became the goal of United States [*478] foreign policy, especially in Third World areas where the United States had "vital interests" 19 and where social conditions such as hunger, poverty, and inequality were feeding impulses for social change. 20 In order to protect its vital interests and maintain regional stability, the United States supported repressive militaries and governments through its considerable ideological and financial weight. 21 However, in Latin America, the United States' support was not limited solely to financing governments and militaries, but also included the training of Latin American soldiers and officers by United States personnel. 22 These trained soldiers were to become the instruments of foreign policy in Latin America. 23
A. History and Background of the School of the Americas
In 1946, the United States established a training institution in the Panama Canal Zone. 24 The original purpose of this institution was to provide training to United States Army personnel in garrison technical skills such as food preparation, maintenance, and other support functions. 25 But soon the institution's goal became the promotion of stability throughout the Latin American region. 26 In 1963, the institution officially became the School of the Americas and Spanish was declared the School's official language. 27 In 1984, the SOA moved to its current location at Fort Benning, Georgia, in order to comply with the terms of the 1977 Panama Canal Treaty and because of a conflict between the United States and Panamanian officials regarding the operation and command of the SOA. 28 Then in 1987, under 10 U.S.C. 4415, Congress formally authorized the Secretary of the Army to operate the SOA with the objective of providing military education and training to military personnel of Latin American and Caribbean countries. 29
[*479] Since the SOA opened, 55,000 military officials and 4,000 policemen and civilians from over twenty-three different countries have trained at the school. 30 Half the students who attend the SOA come from five primary countries - Colombia, El Salvador, Nicaragua, Peru, and Panama. 31 Even though the United States Army offers training of foreign soldiers at other locations, the SOA trains most of the Latin American military students who come to the United States because the courses are primarily taught in Spanish. 32 Candidates for the school are selected by foreign military officials and then approved by the United States embassies in Latin America. 33 Both United States and Latin American military personnel teach courses at the SOA, with civilians teaching some of classes. 34 According to the Pentagon, "the mission of the school is to train the armed forces of Latin America, promote military professionalism, foster cooperation among multi-national military forces, and to expand trainees' knowledge of United States customs and traditions." 35 The United States considers training and educating Latin American militaries as a critical and long-term investment in its national security strategy of promoting democracy in Latin America. 36
The United States' taxpayers primarily fund the SOA. 37 In 1995, the SOA received $ 2.6 million from the Army's operation and maintenance account and a total of $ 18.4 million were spent on the School's operation costs. 38 In the early 1990's, a total of $ 30 million [*480] was used to renovate the buildings and dorms of the school. 39 Besides direct funding from taxpayers, the SOA also receives indirect funding from taxpayers through foreign militaries using United States security assistance grants. 40
The core curriculum at the school centers on commando and combat courses. 41 Specifically, SOA courses include: commando operations, sniper training, countermine training, defense resource management, weapons training, infantry tactics, tactical intelli-gence, patrolling, battle planning, civil-military relations, and psychological warfare. 42 Since 1990, the curriculum at the school has expanded to include addressing post-Cold War needs of the Latin America region. 43 The school's curriculum is based on United States military doctrine and practices, and the materials used are identical to the materials presented to United States military personnel. 44
The Army and the United States have claimed "it is a requirement of the School that every course, regardless of subject or length, include formal instruction emphasizing the sanctity of human rights and proper role of the military in a democratic society." 45 However, benevolent statements like this can only be accurately evaluated by discussing a handful of SOA graduates.
B. Graduates of the School and Their Legacy
In 1995, the State Department reported that, even though progress has been made, abuses of human rights continue to be widespread in some Latin American countries. 46 The horrible reality surrounding the widespread existence of human rights abuses is the fact that graduates from the SOA have played key [*481] roles in some of the worst human rights abuses in El Salvador, Colombia, Guatemala, and other countries.
1.El Salvador - In 1980, a civil war in El Salvador became a focal point for human rights advocates. 47 This war found the citizens of El Salvador threatened by unrestrained death squads that killed up to fifty people a night. 48 On March 23, 1980, Archbishop Oscar Romero made a plea to the leaders of El Salvador:
I would like to make an appeal in a special way to the men of the Army in the name of God and the name of the suffering people whose laments rise to the heavens each day more tumultuous. I beg you, I ask you, I order you in the name of God. Stop the repression. 49
The next day, Archbishop Romero was assassinated. 50 A number of years after the assassination, the National Security Archives in Washington, D.C. obtained a copy of a declassified cable from the American Embassy in El Salvador. 51 The cable discussed a meeting during which Roberto D'Aubuisson planned the murder of Archbishop Romero, and held a lottery to select the actual killer. 52 D'Aubuisson and two of the three officers directly responsible for Archbishop Romero's death were all graduates of the SOA. 53
On November 16, 1989, six Jesuit priests, their housekeeper, and her fifteen-year-old daughter were murdered in San Salvador. 54 The Jesuits were murdered because they were considered "intellectual leaders" of Communist aggression. 55 A United States Congressional investigation, headed by Representative Joseph Moakley, began to look into these murders. 56 The investigation found that the Atlacatl Battalion committed the murders after some of the members of the Battalion returned from the United States where they received training in a number of areas, including human rights. 57 The investigation concluded that nineteen of the [*482] twenty-six officers implicated in the murders, including the lieutenant in charge of the squad, were graduates of the SOA. 58 Additionally, General Juan Rafael Bustillo, former air force chief of El Salvador and graduate of the SOA, helped to plan and cover up the Jesuit massacres. 59
The United Nations created a Truth Commission to specifically investigate the human rights atrocities committed during the El Salvador civil war. 60 The United Nations Truth Commission report held that the El Salvador military and other United States backed governments were responsible for the vast majority of human rights violations, massacres, and civilian deaths. 61 The Truth Commission further listed the names of specific officers responsible for atrocities during the El Salvador war, and this list was cross-referenced with a list of graduates from the SOA. 62 More than two-thirds of the sixty officers cited in the Truth Commission Report were alumni of the SOA. 63 Apart from the soldiers and officers already discussed, the report also noted a number of other SOA graduates involved in human rights abuses. These graduates include: three officers cited for the rape and murder of four nuns buried in an unmarked grave; three officers cited for the murder of two union leaders; two officers cited for the El Junquillo Massacre; three officers cited for the Las Hojas Massacre; and six officers cited for the Sebastian Massacre. 64
2. Colombia - More than 100 of the 246 Colombian officers cited for war crimes by an international tribunal in 1993 were graduates from the SOA, including Colombia's Lieutenant Colonel Victor Bernal Castano. 65 In 1992, Lieutenant Colonel Bernal Castano was allowed to attend the SOA in order to escape a criminal investigation of his role in the massacre of a peasant family. 66 Furthermore, Human Rights Watch, an international human rights watchdog group, compiled a report discussing the link between the Colombian government and Colombian military and [*483] paramilitary groups, groups who were deemed responsible for numerous human rights violations. 67 At least seven officers cited in the Human Rights Watch Report are graduates of the SOA. 68
In 1999, Brigadier General Jaime Ernesto Canal Alban, a graduate of the SOA, commanded the Third Brigade when it set up a "paramilitary" group under the name of the "Calima Front." 69 Both the Calima Front and the Third Brigade were linked to drug trafficking and the massacres of numerous civilians. 70 Moreover, the Fourth Brigade headed by General Carlos Ospina Ovalle, another SOA graduate, has been linked to the El Aro massacre committed in October 1997. 71 Two other Fourth Brigade soldiers who were in charge of commanding an ambush to steal ransom money being delivered for the release of a civilian kidnapped by guerrillas were both graduates from the SOA. 72 One of these Fourth Brigade soldiers, Major David Hernandez Rojas, has also been linked to the creation of a death squad called "La Muerte" (Death). 73 Also, Major Jesus Maria Clavijo, who was a graduate of the SOA, took part in the killings carried out near El Carmen de Atrato in February 1999, and ordered the soldiers under his command to dismember corpses with chainsaws in order to foil identification. 74 Clavijo was also implicated by individuals as a party to a series of murders in Medellin and has been linked to the disappearance of two noted leaders of "displaced people." 75 Finally, Colonel Jorge Plazas Acevedo, another graduate of the SOA, planned and carried out a series of kidnappings for ransom and murders as head of the Thirteenth Brigade's intelligence unit. 76
3. Guatemala - General Romeo Lucas Garcia was the Guatemalan dictator from 1978 to 1982, and was also a graduate of the SOA. 77 During Garcia's reign, there were 5,000 political murders and up to 25,000 civilian deaths at the hands of the Guatemala military. 78 Garcia's bloody reign and legacy was aided [*484] by another SOA graduate, General Manuel Antonio Callejas y Callejas, who oversaw the disappearance and assassination of thousands of political opponents. 79
Another Guatemalan general and SOA graduate, General Hector Gramajo, organized military atrocities that resulted in the death of over 200,000 men, women, and children. 80 In 1991, Gramajo was found liable in a United States civil suit for the rape and torture of Diana Ortiz, a United States Ursuline nun. 81 Ortiz had been abducted, tortured, raped, scarred by more than 100 cigarette burns over her body, lowered into a pit filled with the mutilated and decomposing bodies of men, women, and children, and forced to participate in the abuse of fellow prisoners for the "crime" of teaching Mayan children how to read. 82 A United States District Court ordered Gramajo to pay $ 47.5 million in damages, but he ignored the court's order and blamed the cigarette burns on Ortiz's body as the result of a failed lesbian love affair. 83 Even though Gramajo was linked to more than 200,000 military atrocities and had participated in the torture of Diana Ortiz, Gramajo was invited to be the honorable commencement speaker at the SOA two years after his involvement in Diana Ortiz's torture. 84
Finally, Colonel Julio Roberto Alpirez, another SOA graduate, was linked to the killing of Michael DeVine, an American innkeeper in Guatemala, and the torture and death of Efrain Bamaca Velasquez, a Guatemalan rebel leader who was married to Jennifer Harbury, an American lawyer. 85 Furthermore, Colonel Lima Estrada, another SOA alumnus, was arrested for the 1998 [*485] assassination of Guatemalan human rights champion, Bishop Juan Gerardi. 86 Gerardi had been beaten to death with a brick days after he released a human rights report critical of the Guatemalan Army. 87
4.Other Countries - Notorious graduates from the SOA are not limited solely to El Salvador, Colombia, or Guatemala. In Honduras, four of the five ranking officers who organized death squads in the 1980's and nineteen of the ranking officers linked to death squad Battalion 316, including battalion founder, General Luis Alonso Discua, are all graduates of the SOA. 88 In addition, General Policarpo Paz Garcia, the corrupt dictator of Honduras from 1980 to 1982, was also a graduate of the SOA. 89
In Peru, the three highest ranking Peruvian officers convicted in 1994 for murdering nine university students and a professor, and the Peruvian commander who brought out tanks to obstruct the investigation of the murders were all graduates. 90 During the reign of the Somosa dictatorship in Nicaragua, over 4,000 National Guard troops graduated from the SOA, and many of these troops later became the Contras responsible for the deaths of thousands of civilians in the 1980's. 91 Also, Lopoldo Glatieri, the general in charge of Argentina's "dirty war," an incident where an estimated 30,000 people disappeared, were tortured, and murdered, was also a graduate. 92 Finally, the former dictator of Bolivia, Hugo Banzer, and General Manuel Noriega, a long-time CIA operative currently serving forty years in a United States prison for drug trafficking, are also both graduates from the SOA. 93
The large number of human rights violations committed by soldiers and officers who happened to be former students at the SOA could be a simple coincidence. Just because the SOA is a common link between atrocities committed in numerous Latin American countries does not mean that the SOA has played any [*486] type of a role in these atrocities. However, the truth is that the SOA curriculum has not only been weak in teaching a respect for human rights, but has, in fact, encouraged Latin American soldiers to torture and use other techniques that are considered violations of international law.
C. Evidence Exists Showing that the SOA Curriculum Includes Torture and Other Techniques that are Violations of International Law
In 1996, the Pentagon publicly admitted that the training manuals used at the SOA instructed officers in the art of execution and torture. 94 The Pentagon revealed this horrible fact in 1991 after the Presidential Intelligence Oversight Board was asked by President Clinton to investigate allegations about CIA operations in Guatemala. This investigation followed the torture and rape of Diana Ortiz and the killings of Michael Devine and Efrain Bamaca. 95 The report developed by the Board noted in a single paragraph that the SOA had used improper instruction materials in training Latin American officers from 1982 to 1991. 96 These training materials, which never received proper Department of Defense review, "appeared to condone (or could have been interpreted to condone) practices such as executions of guerillas, extortion, physical abuse, coercion, and false imprisonment." 97 The report noted that the Department of Defense "modified the materials" and directed officials in certain Latin American countries to retrieve all copies of the originals. 98
Even though the SOA denies the manuals ever existed, the Pentagon declassified the Spanish-language manuals allowing Americans to read "some of the noxious lessons the United States Army taught to thousands of Latin American military and police officers at the School of the Americas." 99 The manuals identified "religious workers, labor organizers, student groups and others in [*487] sympathy with the cause of the poor" as targets and insurgents. 100 The manuals, which are written in a "chilling bureaucratese with which spooks routinely try to sanitize the unmentionable," advocate executions, torture, false arrest, blackmail, censorship, payment of bounty for murderers, and other forms of physical abuse against insurgents. 101 For example, the manual entitled "Terrorism and the Urban Guerilla" states that one of the duties of a counterintelligence agent is recommending targets for "neutralizing," which is a euphemism for elimination or assassin-ation. 102 As part of the "Interrogation" manual, military officers were taught to gag, bind, and blindfold suspects and, "coin-cidentally," thousands of Latin Americans who were tortured and murdered during interrogation were gagged, bound, and blind-folded. 103 Finally, the "Handling of Sources" manual discussed how a counterintelligence agent "could cause the arrest or detention of the employee's [informant's] parents, imprison the employee or give him a beating as part of the placement plan." 104 A former instructor at the SOA has revealed that
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