Federal Court: US Can Extradite Ex-El Salvador Official to Spain for Jesuits Massacre

On Monday, U.S. federal judge Terrence Boyle ruled that Inocente Orlando Montano Morales (Montano)—who headed El Salvador’s National Police as Vice Minister for Public Security in the 1980s—can be extradited to Spain to stand trial for his role in the 1989 murder of six Jesuit priests, their housekeeper, and her daughter on the grounds of the University of Central America (UCA).  A magistrate judge, Kimberly Swank, had earlier reached the same conclusion (her ruling is here). Montano sought habeas corpus from the district court, the government filed a motion to dismiss, and a hearing was held in November 2016. Monday’s ruling followed. UPDATE: Montano has filed a notice of appeal and will seek a stay of the issuance of the extradition warrant during the pendency of the appeal.

Here is a quick update on this story, which I’ve covered in the past.

The massacre took place during the Salvadoran civil war.  Members of the Salvadoran army stormed the UCA, forced the priests to kneel in the courtyard, and subsequently shot them in the back of the head. The Salvadoran Truth Commission, declassified documents collected by the non-profit National Security Archives, and the diary of one of the co-conspirators all reveal that Colonel Montano was present when the order was given to kill Father Ignacio Ellacuría—who was attempting to broker peace talks between the government and the rebel forces—and to leave no witnesses. Five of the priests were Spanish nationals.

The massacre sparked global outrage and in many respects marked a turning point in the war.  It also led to a U.S. congressional investigation that concluded that the U.S. military had trained members of the armed forces who participated in the killing in “unconventional warfare” and other military tactics.

Although the Salvadoran government did open an investigation into the massacre and convict some of the suspects, the defendants were later released upon the passage of an amnesty law following the war.  The Salvadoran Constitutional Court has since invalidated the 1993 amnesty law, opening the way for civil-war era crimes to be prosecuted domestically, including the El Mozote massacre and the assassination of Archbishop Oscar Romero.

In 2008, lawyers from the Center for Justice & Accountability (CJA) and the Spanish Pro-Human Rights Association invoked the Spanish law on extraterritorial jurisdiction to seek the indictment of 20 former Salvadoran military officials alleged to have been involved in the Jesuit massacre, including Montano. Colonel Montano was discovered living in Everett, Massachusetts and working at a candy factory. Having lied about his military service when he entered the United States and applied for Temporary Protective Status, he was charged in the United States with immigration fraud (18 USC 1546); he eventually pled guilty in September 2012 and was sentenced to 21 months imprisonment. He served his sentence in North Carolina, which is where his extradition challenge has played out.  My colleague, Prof. Terry Lynn Karl, submitted an expert report in the case detailing Montano’s involvement in a range of human rights abuses, including the murder of the Jesuits.  In the meantime, Spain sought Montano’s extradition from the United States and that process has been underway ever since. The rest of the defendants are presumed to be in El Salvador. The Spanish extradition requests to Salvador have not borne fruit, however, in part due to the application of the amnesty law.

By way of procedural background, extradition involves the formal surrender of a person present in one state (“the requested state”) to another state (“the requesting state”) for the purpose of criminal prosecution or punishment.  In the United States, international extraditions are governed by federal law, constitutional law, and a web of bilateral and multilateral treaties.  The United States has bilateral extradition treaties with over 100 countries of the world, including Spain.

The extradition process is ultimately within the discretion of the Secretary of State following a judicial certification that the extradition would be lawful under the relevant legal framework.  The requesting state normally submits an extradition request to the U.S. State Department, often with supporting documentation.  The Secretary of State will then forward the request to the Department of Justice in order to effectuate the arrest of the fugitive who inevitably challenges extradition.  During the extradition determination, the judge will confirm that the there exists a valid legal basis for the extradition between the two states, the offense charged is extraditable and satisfies double criminality, there is probable cause to belief the individual committed the offense charged, and any treaty or statutory requirements have been satisfied. The principle of double criminality requires that the conduct for which the person is being prosecuted is a crime in both the requesting and the requested states.  (The United States can prosecute a number of international crimes subject to various forms of extraterritorial/universal jurisdiction, including the murder U.S. citizens abroad). The hearing is not conducted according to the rules of criminal procedure and there is no right of appeal, only recourse to the writ of habeas corpus.

The United States generally construes extradition treaties in a way that will honor an extradition request, if possible.  In the past, some extradition treaties were limited to crimes committed within the territorial jurisdiction of the requesting state.  However, given the rise of international cooperation around terrorism, trafficking, and other international crimes, this is no longer the case.  Indeed, in the Montano case, Judge Boyle noted that:

The Treaty in the case provides for the extradition of a defendant charged with murder when committed outside the territory of the requesting nation, so long as the requesting nation’s laws allow for such a prosecution and so long as the laws of the requested nation would allow for a prosecution in similar circumstances. These requirements have been met here.

The next step is that Secretary Tillerson should move to effectuate Montano’s extradition now that the legal pathway is clear.

Assuming he is extradited, Montano will be one of the first top-ranking Salvadoran commanders to face criminal prosecution. A number of Salvadoran defendants have been successfully sued civilly in the United States by CJA under the Alien Tort Statute and the Torture Victim Protection Act.  The case in Spain is being prosecuted by lawyers with Guernica 37, a human rights law firm with offices in Madrid, London, and the United States. 

About the Author(s)

Beth Van Schaack

Fellow at the Center for Advanced Study in the Behavioral Sciences (CASBS) at Stanford University, Former Leah Kaplan Visiting Professor of Human Rights at Stanford Law School, Former Professor of Law at Santa Clara University School of Law, Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department All views are her own. Follow her on Twitter (@BethVanSchaack).