Friday, September 29, 2023
This Monday, September 25, a Virginia immigration judge ruled to not deport retired Salvadoran Colonel Roberto Antonio Garay Saravia, arrested in April for his alleged involvement in the El Mozote massacre, in which Salvadoran commandos from the Atlacatl Battalion executed nearly 1,000 civilians amid a scorched-earth campaign in December 1981 in the department of Morazán.
Garay Saravia has legally resided in the United States since 2014 and is the first and only member of the Salvadoran military to be arrested explicitly for his ties to the massacre. According to army records, he served as commander of one of four sections of the Atlacatl Battalion, an elite squadron financed and trained by the United States. He was arrested following a joint two-year investigation by the human rights and war crimes units of the Department of Justice (DOJ) and Department of Homeland Security (DHS).
U.S. investigators also tie the colonel to other massacres of civilians committed by the Salvadoran Army between 1981 and 1984 during the civil war, like La Quesera and El Calabozo, but the removal proceedings against Garay Saravia focused on the crimes at El Mozote.
Judge Brian T. Palmer conceded that Atlacatl participated in “scorched earth” campaigns. “The Court finds ample evidence in the record that noncombatant civilians were deliberately killed by Atlacati Battalion soldiers,” he wrote in his decision. He also acknowledged that Atlacatl participated in El Mozote, that Garay Saravia participated in “Operation Rescate,” the military operation in which the massacre occurred, and that the officer “was assigned as a Section Leader, in some capacity, within the Battalion.”
But at the same time he dismissed the key portion of the testimony of expert witness Terry Karl, a Stanford University investigator and specialist on the Salvadoran civil war. Karl asserted during the hearings that Garay Saravia “incited, assisted, or otherwise participated” in the massacres mentioned in the deportation proceedings.
Karl also testified in April 2021, during the ongoing trial for the El Mozote massacre in a court in Morazán, on the Army hierarchy involved in the massacre and the presence of a U.S. military advisor, Allen Bruce Hazelwood, in Morazán during the murders. The academic argues that a pact of silence among military officers has obstructed any courtroom testimony from within the Salvadoran Armed Forces.
“The Court finds the DHS did not establish by clear and convincing evidence that the Respondent assisted or otherwise participated in the commission of deliberate killings or that the Respondent knew or should have known that his subordinates committed deliberate killings,” wrote Palmer. “Although the Respondent likely was present and likely otherwise participated in or failed to prevent the murders, a mere likelihood or preponderance is not enough to meet DHS's clear and convincing burden.”
“With few exceptions, there is little evidence to indicate the specific location of identified Atlacatl units, and even less evidence as to who led the sections,” said the judge. “The Respondent's section could not have been present at all the killing sites, which occurred over a four-day operation in diverse locations.”
“For purposes of removal proceedings, ‘units’ do not assist or otherwise participate [in] extrajudicial killings, but instead such acts are committed by individuals within units. Although the Court finds that many members of the AtlacatI Battalion committed, assisted, and participated in the murder of noncombatants in the described operations, the Court finds insufficient evidence that the Respondent was one of those people.”
Residents of the hamlet of El Potrero in the village of La Joya bury their family members in a monument honoring the victims of the El Mozote massacre. They buried the remains of 19 people on Sunday, Dec. 11, 2016. Photo Fred Ramos
Palmer —a former Marine Corps commander appointed by former Attorney General Jeff Sessions in 2018, who as a soldier was deployed to Kuwait, Kosovo, and Afghanistan, among other campaigns— concluded on these grounds that Garay Saravia did not lie on his September 2013 visa application, a crime punishable by deportation. In order to obtain U.S. residency, which he was granted in March 2014, he asserted that he had not “participated in or ordered genocide, torture or extrajudicial killings.” In 2017, three years after his move to the United States, the Legislative Assembly revoked the amnesty granted during the 1992 peace accords which had shielded those responsible for war crimes from prosecution.
“It is a good thing that any court would require a high bar for evidence of individual responsibility before expelling someone from the country through deportation,” says Angelina Godoy, director of the University of Washington Center for Human Rights, who for years has worked to shed light on crimes from the Salvadoran armed conflict. “But it’s hard not to note the irony that this exact same immigration court system deports thousands of Salvadorans every year without affording them anywhere near the presumption of innocence shown to Mr. Garay.”
“Our attorney requested Mr. Garay Saravia’s arrest months ago,” says Leo Tovar Claros, of the Association for the Promotion of Human Rights in El Mozote. “We believe these cases are positive because they are all guilty, but this man was from a high level where he gave out the orders for what happened here in El Mozote, as well as in other cases around the country in which he is also guilty.”
Gap in the Records
Judge Palmer lamented, as did Karl during the hearings, that “possibly incomplete service records” in the Salvadoran military’s files hinder efforts to establish exactly where Garay Saravia was during the massacre, which men he led, and what actions they took.
Victims’ associations and human rights groups have constantly advocated for a complete unsealing of the Salvadoran military’s records. President Nayib Bukele promised in November 2019 to declassify all of the military’s files relating to El Mozote, but four years later his government has kept them secret.
“The Court further recognizes the evidentiary challenges created by the Salvadoran military's efforts to conceal its past atrocities,” Palmer indicated, “as well as the passage of time the Respondent's alleged crimes occurred more than four decades ago.” Godoy, of the University of Washington, told El Faro after Garay Saravia’s arrest that the Salvadoran military records contain more information on his possible participation in the El Mozote massacre.
“El Mozote is certainly important but the court reviewed evidence of his participation in multiple major and well-documented massacres from this period,” adds Godoy. “I think it is disgraceful that 40 years on, complete judicial investigations have not taken place in *any* of these massacres.”
Upon his arrest in April, senior Biden officials underscored that “individuals who have committed atrocities overseas will not find safe haven in the United States.” On Thursday Garay Saravia’s defense tried to present the immigration judge’s decision as an “exoneration,” despite the fact that removal proceedings are a civil process and the retired military officer has yet to face criminal charges in El Salvador.
“While we acknowledge that tragic events, including the loss of lives, take place during civil wars and the Salvadoran civil war is no exception, our client simply is not the man the U.S. government accused him of being,” asserted defense attorney José Campos in a statement. “[Garay Saravia] has long maintained his innocence in this matter. It is a testament to the principles of justice and due process upheld by the United States legal system.”
DHS will likely appeal the decision, though their press office has yet to confirm to El Faro whether they will do so. An appeal would first pass through the Board of Immigration Appeals, and then to a federal court of appeals.
The proceedings against Garay Saravia in the United States have taken place amid the most difficult period for the victims and their families. The judge who ordered the El Mozote massacre case to trial in El Salvador, Jorge Guzmán, was forced into retirement in September 2021 following legal reforms implemented by the ruling party Nuevas Ideas that purged one-third of the country’s judges. Since then, victims and witnesses have complained of procedural changes established by the new judge assigned to the case.
Even if Garay Saravia were to be removed to El Salvador, he would not face any restrictions on his liberty under the current circumstances as he does not face an arrest warrant. Judge Guzmán has now left El Salvador. He told El Faro that what triggered his departure was “the criminalization of my wife with fabricated evidence by a labor court judge, in retaliation for my confrontation with the Court and with the President.”
In the last two years in El Salvador, not a single hearing has been held relating to the El Mozote massacre.
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