II. DOJ'S RESPONSE TO THE ZONA ROSA MURDERS: THE CRIMINAL INVESTIGATION AND PROSECUTION

A. Introduction

This section of the Report responds to SSCI's Questions 1, 2, 5, and 7, which state:

Question One: What information does DOJ have on the perpetrators/intellectual authors of the murders and the subsequent investigation into this matter?

Question Two: What action has been taken by officials from DOJ against the perpetrators/intellectual authors of the murders?

Question Five: What role did DOJ play in the investigation of the murders and what priority has been placed on the investigation?

Question Seven: What dealings, since the murders, has DOJ had with the government of El Salvador on this matter, and in the course of that relationship, has the Salvadoran government demonstrated an aggressive effort to identify, prosecute, and incarcerate the perpetrators/intellectual authors?

B. DOJ's Role in the Immediate Aftermath of the Murders

As was clear from our interviews of government officials involved in the response to the Zona Rosa attack, the consensus of the United States government after the murders was that it should assist the Salvadorans in a military response to the murders and also assist the Salvadorans in prosecuting the murderers in the Salvadoran courts, if they could be apprehended, rather than seek to prosecute the murderers in the United States. All agencies, including DOJ, were in agreement on this principle.

We were informed that a military response was the primary option initially considered by the United States. Langhorne Anthony Motley, the Assistant Secretary of State for American Republic Affairs, David Passage, the Charge d'Affairs in the United States Embassy in El Salvador, and General John Galvin, Commander in Chief, United States Southern Command, all reported to us that the initial focus of United States efforts in response to the murders was on military action. [The DOD OIG's report should be consulted for information on the proposed military response.] For example, Passage, said he had no recollection of any effort to bring the perpetrators of the massacre to justice in a court proceeding. He said that the situation did not lend itself to that kind of resolution. Passage stated that the Salvadorans, with the aid of the United States, were engaged in the "prosecution of a war," not in trying to bring individuals to justice in the courts.

Moreover, when a judicial response was considered, it was agreed that the preferable forum to prosecute the perpetrators was in El Salvador. Shortly after the murders, the FBI consulted with the General Litigation and Advice Section (GLAAS) of DOJ and determined that jurisdiction in the United States to prosecute the killers would exist if the government could prove that the Marines were internationally protected persons, as defined in 18 U.S.C. 1116. This statute makes the killing of an internationally protected person, no matter where it occurs, punishable under United States law. [ An internationally protected person is defined in 18 U.S.C. 1116(3) as: (A) a chief of State or the political equivalent, head of government, or Foreign Minister whenever such person is in a country other than his own and any member of his family accompanying him; or (B) any other representative, officer, employee, or agent of the United States Government, a foreign government, or international organization who at the time and place concerned is entitled pursuant to international law to special protection against attack upon his person, freedom, or dignity, and any member of his family then forming part of his household.] GLAAS concluded that the Marines qualified as internationally protected persons under this statute. In 1985, this crime was punishable by a maximum sentence of life in prison. [The murders occurred before the enactment of the terrorism statute, 18 U.S.C. 2331, in 1986 which gave the United States jurisdiction to prosecute terrorism that affected United States citizens abroad.]

Despite the possibility of a United States prosecution under 1116, it was agreed by DOJ, DOS, and other United States government agencies that a Salvadoran prosecution, rather than a prosecution in the United States, was preferable for several reasons. First, the physical evidence and the witnesses to the crime were in El Salvador, and there was no indication that the Salvadorans would provide either the evidence or the necessary witnesses for a prosecution of its citizens in the United States. Second, the United States had made extensive efforts to encourage improvement of Salvadoran law enforcement agencies, including the creation of the Salvadoran Special Investigative Unit (SIU), an independent law enforcement unit modeled on the FBI. Taking the matter away from the Salvadorans would have been seen as contrary to these efforts. Third, the United States tried to encourage the Salvadorans to improve their judicial system and to use it to prosecute military defendants for human rights violations as well as to prosecute terrorists. This was consistent with the United States government's policy of encouraging countries to prosecute terrorists locally rather than to rely on the United States to police the world.

Several witnesses stated to us that it would have been seen as hypocritical to push the Salvadoran system to function better and then to remove a case from its jurisdiction merely because the victims were United States citizens. In addition, despite the strong presence of the United States in El Salvador--including military advisors and an active CIA Station--the sovereignty of El Salvador was considered an important factor in allowing it to take a strong response to the murders. The United States Ambassador in El Salvador in 1987, Ambassador Edwin G. Corr, made clear to DOJ and others that he felt strongly that the United States should not embarrass the Salvadorans in a public way by seeking to take away the Zona Rosa cases, thereby giving a vote of "no confidence" to the Salvadoran judicial system.

Consistent with this consensus, the FBI was willing to assist the Salvadorans in their investigative efforts and, as a back-up, to participate in any future prosecutive efforts in the United States. However, it was understood that the FBI would not be conducting its own investigation. On June 26, 1985, a meeting was held in Washington at the request of President Reagan to discuss the appropriate United States response to the murders. Present at the meeting were representatives of the CIA, DOS, DOJ, and FBI. According to a Memorandum for the Record written by the CIA, all agreed that a "Joint PRTC [The PRTC was one of the five major factions of the FMLN, a Marxist-Leninist guerrilla group in El Salvador. ] Task Force" would lead the efforts to gather information about the murders. The task force was to be run out of the CIA Station in El Salvador and was composed of Salvadoran military and CIA personnel. During a discussion of the handling of the technical and forensic evidence collected in connection with the case, it was decided that the Salvadoran SIU should manage the evidence, with United States support. The FBI made clear at the meeting that the FBI agent detailed to train the SIU was not going to conduct the investigation, but rather assist the Salvadorans, because the FBI did not want to create false hopes that it would be handling the case.

In addition, the FBI offered assistance to the DOS Office of the Inspector General, which initiated its own review to determine if the security arrangements that had been in place to protect United States government officials in El Salvador were followed and whether new precautions were required. The FBI informed the head of this DOS investigation that FBI technical assistance was available to him. The DOS investigators performing the review called upon the FBI to aid the Salvadorans with analysis of the forensic evidence that was recovered.

On June 25, 1985, FBI Headquarters sent a teletype to the FBI's Legat in Panama (which covered El Salvador) and the FBI's WMFO outlining the facts surrounding the Zona Rosa murders. The FBI pointed out that "if the unknown assailants are eventually identified, apprehended, and subsequently released to United States authorities for prosecutive action," charges could be brought against them in the United States. FBI Headquarters directed the Panama Legat to obtain all Salvadoran reports on the murders in order to be prepared for such a situation in the future.

C. The Salvadoran Investigation

Immediately after the Zona Rosa murders, Salvadoran

President Duarte convened a committee, including the Salvadoran Vice President and the Defense and Security Ministers, to oversee the Salvadoran criminal investigation into the murders. The Salvadoran SIU was charged with assisting the Salvadoran military--and more specifically its National Guard--and the Salvadoran National Police in identifying the murderers.

The Salvadoran SIU was intended to be a "clean" law enforcement body, untainted by any corruption that affected the Salvadoran military or civilian police. In the several years before the Zona Rosa murders, an FBI agent had been assigned, together with a DOJ attorney, to work with the SIU in teaching it basic investigative techniques. United States law enforcement officials also periodically went to El Salvador to train the SIU in proper law enforcement techniques, and SIU investigators occasionally came to the United States to receive further training.

The Salvadoran authorities--the National Police and National Guard, assisted by the SIU--conducted an extensive investigation into the murders, leading to the prosecution in El Salvador of one of the gunmen and several of the supporters of the attack. We next describe information that was developed by the Salvadoran authorities in its investigation and that was shared with DOJ when it began its own prosecutive efforts in 1987.

1. The Salvadoran Forensic and Crime Scene Investigation

The Salvadoran National Police arrived at the crime scene on June 19 ten to twenty minutes after the murders. We were informed that they did not get there sooner because some of the police did not have cars and had to take public transportation to the scene. Members of the technical section of the Salvadoran National Police, which was in charge of processing the scene, found eight bodies when they first arrived. The bodies of the four Marines had already been taken to the emergency room of a hospital.

Even after the police arrived, they failed to adequately preserve the crime scene. By the time the technical section of the police attempted to process the crime scene, civilians were milling throughout the area. According to a DOS Diplomatic Security report that was supplied to the FBI, the Salvadoran police tried to follow leads immediately after the murders, but witnesses had already left the scene and cars had been moved. As a result, many witnesses were not identified and the crime scene was "rendered almost useless because almost everything was moved, shifted, or taken." The DOS report confirmed that the crime scene area was not secured because of the late arrival of the police. Many civilians at the scene picked up spent rounds and shell casings, taking them as souvenirs. Bullet holes in the shops were quickly plastered over by shopkeepers. Because of these actions, no final determination was made as to the number of rounds fired, the positions from which the attackers fired, how many persons fired, or the types of weapons used. [The Salvadorans later attempted to reconstruct the crime scene and determine the location of the bodies and the trajectories of the shots.]

The four slain Marines--Gregory O. Weber, Patrick Kwiatowski, Thomas T. Handwork, and Bobby J. Dickson--were taken on June 19 to the "Hospital de Diagnostico y Emergencia" in San Salvador. A Salvadoran Medical Examiner examined the bodies of the four Marines at 11:40 p.m. The Medical Examiner determined the cause of their death to be hemorrhagic shock. The Medical Examiner found that the body of Dickson had 18 entry wounds; Weber's had 10 entry wounds; Kwiatowski's had 3; and Handwork's had 10. However, no autopsies were performed on the bodies. According to a letter from the Marine Corps Personal Affairs Branch dated September 30, 1985, the Salvadorans did not perform any autopsies because the cause of death was known: cardio respiratory arrest due to multiple bullet perforations.

The Salvadoran National Police laboratory performed chemical analysis on the slain Marines' clothing. Gun powder was found to be present on some of the clothing. According to the police report, this suggested that the Marines were shot at very close range, likely a distance of less than 15 centimeters.

The Salvadoran police conducted ballistic tests on five 5.56 mm casings found at the scene. The tests showed that four different types of firearms using 5.56 mm bullets were employed by the assassins. Tests of nine 9 mm casings found at the scene showed that two different types of 9 mm weapons were used. Attempts were also made to compare casings found at the scene of the crime with shell casings found in the vicinity of "la Esperanza Penitentiary," a Salvadoran prison that had been attacked by guerrillas early in 1985. The bullets were determined to be similar, but they could not be matched because the police laboratory did not have a microscope powerful enough to enlarge fine characteristics. It does not appear from FBI records that the FBI was ever asked to assist with the examination of the bullets.

According to the DOS Diplomatic Security report, four 9 mm rounds were removed from the bodies of Marines Handwork, Dickson, and Weber. Two 9 mm rounds were also removed from the body of United States citizen Robert Alvidrez, a businessman who had been killed while sitting at the sidewalk cafe. Salvadoran National Police lab technicians found that the rounds removed from Handwork and Weber were fired by the same weapon.

On June 20, 1985, the Salvadoran police recovered an abandoned white Toyota pickup truck with red stripes on the sides in San Salvador. The truck had bullet holes in the right fender, blood stains on the floor, and a briefcase containing a hand grenade inside the truck. Some M-16 and .38 bullet casings were also found on the seat and floor. The license plate of the vehicle was traced to [REDACTED], a sales manager for an unknown company. [REDACTED] reported to the police that he had stopped at a gas station on June 19 at about 5 p.m., when he was accosted at gun point by two young men. They stole his truck and drove away. On June 20, 1985, a co-worker of [REDACTED] found his truck abandoned and reported it to the police. The police obtained fingerprints from the abandoned vehicle, most of which matched those of [REDACTED].

Tests were conducted on the spots found on the clothing of the Marines and a spot in the abandoned Toyota pickup truck. The spots were determined to be blood, but no "type, differentiation and accuracy tests" were conducted, because the Salvadoran police laboratory did not have the necessary equipment. It does not appear from FBI records that the FBI was asked to assist the Salvadorans in these examinations.

One of the gunmen in the attack, Jose Roberto Salazar Mendoza (Salazar), also known as Julio, was killed while in the line of fire of another gunman. The attackers took Julio with them as they fled the scene and left him at the Red Cross. He was then taken to a hospital. The police located the hospital where his body had been taken, but by the time the police arrived at the hospital, his body had already been buried. The police had the body exhumed for examination. Traces of gun powder were found on the backs of his hands. It was later determined that the blood found in the abandoned pickup truck matched Julio's blood type. According to the DOS Diplomatic Security Report, a 9 mm round was removed from Salazar's body, but this bullet was later lost.

On June 21, 1985, a fourteen-year-old boy found two identical notes in envelopes in a public telephone booth in front of a radio station in San Salvador. One of the notes was turned over to the police and the other was kept by the telephone company. The note turned over to the police was entitled "Communique of the Politico-Military Committee of the Urban Guerrilla Commandos `Mardoqueo Cruz' of the FMLN." In it, the Mardoqueo Cruz claimed responsibility for the killings of the Marines in the Zona Rosa attacks. [The Mardoqueo Cruz was the urban commando section of the PRTC. The PRTC was one of the five major factions of the FMLN, a Marxist-Leninist guerrilla group in El Salvador.] The note stated, in part:

We inform: (1) That our Commandos claim responsibility for the execution of the politico-military operation: "YANKEE AGGRESSOR IN EL SALVADOR, ANOTHER VIETNAM IS IN STORE FOR YOU," which consisted of an annihilation attack against American military advisors, CIA agents, and elements from other nations connected to intelligence agencies in the service of American imperialism that were in the Zona Rosa, Colonia San Benito, in the Chili's restaurant.

* * * *

We make an appeal to the American public opinion to increase their efforts and actively oppose the warlike administration of Ronald Reagan to prevent him from embarking in yet another military adventure that would bring more pain and suffering to the American people.

According to the DOS Diplomatic Security report, no one processed either of the PRTC letters for latent fingerprints, and no one recovered the second original of the letter from the Salvadoran telephone company.

The DOS Diplomatic Security Report stated that on June 28, 1985, DOS Diplomatic Security Agent Victor DeWindt was given a clear plastic bag containing eight M-16 shell casings and one spent bullet. It is unclear from the report where this material came from and who gave it to DeWindt. This material was forwarded to the FBI for examination. The DOS report also stated that the police had recovered 20 rounds from the attack site. DeWindt reported that: "Most of the rounds were left in the bodies. However, some of the rounds were removed and forwarded to the police technical laboratories for study and analysis." It is not clear whether any of these bullets were removed from the bodies of the Marines.

2. The Salvadoran Interviews of Witnesses

[REDACTED] was [REDACTED] in the Zona Rosa on the night of June 19. On July 10, 1985, he was interviewed by the Salvadoran National Police about what he had witnessed. [REDACTED] said he first saw the guerrillas drive up to the cafe in a pickup truck. [REDACTED] believed that a second car was also travelling with the pickup truck. He said that several individuals dressed in camouflage gear got out of the truck, lined up in front of the Marines, and opened fire at them. After the gunmen fired at the Marines, they fired into the crowd in the cafe and towards the Brazilian Embassy across the street.

During the attack, [REDACTED] was shot twice in the legs and fell to the ground. While he was lying on the ground, one of the gunmen approached him and took a .45 caliber pistol that [REDACTED] kept in his belt. The gunmen then retreated into the pickup truck and drove away. [REDACTED]also stated that, before the guerrillas drove up, a man came into the bar acting strangely. The man hung around the bar, then made a telephone call and left just before the guerrillas arrived. [REDACTED] stated that he believed that the man had been a scout for the guerrillas.

Salvadoran police also interviewed [REDACTED], another [REDACTED] eyewitness to the attack. Despite the belief of Salvadoran police that [REDACTED] could identify the assailants, he insisted that he was not able to identify anyone.

Salvadoran police interviewed numerous other witnesses to the attack. These witnesses saw a pickup truck with guerrillas drive to the cafe, and saw several people climb out of the truck and begin firing at the Marines. None of these witnesses were able to identify any of the attackers. Most had seen very little because the shooting surprised them, and they had immediately sought cover. The few who saw the attackers were not able to describe them in any detail. None of these witnesses appear to have been asked to view any lineup of potential suspects.

Salvadoran police interviewed [REDACTED], a Salvadoran citizen who worked for Taca Airlines and flew frequently to the United States. [REDACTED] reported to police that on June 19, 1985, at approximately 5 p.m., her truck had been stolen from her by two unknown men carrying guns. [REDACTED] believed the men to be guerrillas. [REDACTED] provided full descriptions of both men, but the Salvadoran police were unable to compile composite drawings from her descriptions. The truck was later recovered by the police and held in connection with the killings. DOJ has no information as

to where or when the truck was recovered or whether it was processed for evidence. It does not appear, however, that [REDACTED] truck was used in the attack.

From these witnesses, the Salvadoran police concluded that there were about twenty individuals involved in carrying out the massacre and that they arrived at the scene in two pickup trucks--one red and one white. Four of the guerrillas shot at the Marines, while others provided cover. After they had fired at the Marines and into the crowd, the gunmen jumped back into the pickup trucks, returning briefly to grab their injured comrade Julio. The guerrillas drove away and dropped Julio at the Red Cross.

Based on the witnesses' statements, the Salvadoran National Police composed artist sketches, or "identikits," of the suspect who had stolen [REDACTED] white pickup truck, five of the suspects at the scene of the crime, and the suspect that [REDACTED] believed to have been checking the cafe before the shooting. These sketches were published in Salvadoran newspapers.

D. FBI Assistance to the Salvadoran Investigation

1. FBI Investigative Steps

As discussed above, the FBI offered to provide any technical assistance or other support requested by the Salvadorans.

In July 1985, at the request of DOS, the FBI interviewed [REDACTED], a pilot for Taca Airlines. DOS had learned that [REDACTED] had a bullet from the attack at his home in New Orleans. [REDACTED] stated that he witnessed the shootings as he was riding by the cafe in a Taca Airlines van. [REDACTED] recovered a bullet that hit the van and came to rest on the van floor. [REDACTED] kept the bullet as a souvenir. [REDACTED] turned the bullet over to the FBI, and it was forwarded to the FBI laboratory.

The FBI also received information from an assistant to United States Senator Jeremiah Denton that [REDACTED] might be able to identify the people who had stolen her pickup, even though she had told Salvadoran authorities that she could not. The FBI therefore interviewed [REDACTED] when she was in New Orleans on July 1, 1985. [REDACTED] gave the FBI the same information that she had given the Salvadorans. She added that she was concerned for her safety and also worried that the authorities might not believe that her truck had been stolen and would think she was collaborating with the guerrillas. When [REDACTED] returned to El Salvador after the interview, she complained to Salvadoran authorities about the FBI interview. As a result, President Duarte raised the matter with the United States Embassy, and the Embassy asked the FBI not to interview any Salvadoran citizens without prior coordination with the Embassy and Salvadoran authorities.

On July 18, 1985, FBI Headquarters directed the FBI's Houston field office to track down leads the FBI had received from the CIA regarding an individual named Roberto Ernesto Sanchez Marroquin (Marroquin). The CIA had reported [REDACTED] Marroquin was involved in the Zona Rosa killings. Marroquin was believed to be in the Houston area. On July 30, 1985, after Marroquin was arrested by INS as an illegal alien, the FBI interviewed him. He admitted that he was a member of the PRTC but denied participation in the Zona Rosa killings. The FBI gave Marroquin a polygraph about his denial of involvement in the Zona Rosa murders, which he passed. Checks by the FBI revealed that Marroquin had been in the United States at the time of the killings. On August 23, 1985, because of his illegal immigration status, Marroquin was deported to El Salvador.

2. FBI Laboratory Assistance

The FBI agreed to provide laboratory support to the Salvadorans because of the inadequacy of the Salvadoran equipment and the lack of training in certain techniques and analytic methods. On August 14, 1985, the FBI Panama Legat forwarded a request by the Commander of the Salvadoran Special Investigative Unit to FBI Headquarters for FBI forensic laboratory assistance. The Legat had received this request several days earlier when he was in El Salvador. The FBI was asked to supervise forensic examinations by the Salvadoran National Police in El Salvador and provide the necessary equipment to the Salvadorans. Officials of the FBI Laboratory Division strongly recommended that the forensic evidence be sent to them in Washington so that they could conduct a thorough and complete examination. Tests with significant results could then be repeated in El Salvador, in collaboration with the appropriate Salvadoran technical personnel, to meet the requirements of the Salvadoran judicial system. The Salvadorans agreed to this procedure.

In addition, the FBI Identification Division made two fingerprint specialists available to travel to El Salvador, although there is no record in FBI files that they went. A bullet removed from the right wrist of United States Marine Gregory Weber was submitted to the FBI laboratory for evaluation. It was examined microscopically for a determination of what type of weapon had fired it and held for future comparison. DOS also submitted two bullets and eight cartridge cases to the FBI laboratory for examination. The source of these items was not relayed to the FBI. The FBI determined that the bullets were fired by the same firearm, either a Colt Ar-15, an M-16, or an Armalite AR-180. The New Orleans FBI field office also forwarded the bullet retrieved from witness [REDACTED] to the FBI Laboratory in Washington. The bullet was examined and retained for future comparison with a recovered weapon. The laboratory found that the bullet's markings were of limited value for comparison. The laboratory found that the bullet was consistent with one fired from a .357 or .38 caliber revolver. It is unclear why the Salvadorans did not submit other forensic evidence, such as the blood and fingerprints, to the FBI for analysis.

E. The Break in the Case--the Arrest of Garcia

On August 4, 1985, the United States Border Patrol in San Diego, California, arrested Juan Miguel Garcia Melendez (Garcia) during a routine sensor check for illegal aliens. On August 6, 1985, Garcia told a Border Patrol agent that he had information about the Zona Rosa murders. The Border Patrol conducted an extensive interview of Garcia about the Zona Rosa murders and notified the FBI about the information it learned. On August 7, Garcia was again extensively interviewed by the FBI, the Border Patrol, and a Naval Investigative Service agent.

Garcia reported that he had been employed in an upholstery shop in San Salvador along with William Celio Rivas Bolanos (Rivas). On the afternoon of June 19, while in the upholstery shop, Garcia overheard Rivas talking with a person known as Ulises. Garcia said that he knew Ulises because he came around the upholstery shop frequently to meet with Rivas. On June 19, Rivas and Ulises began drinking alcohol at the shop at 4 p.m. and were intoxicated by 6 p.m. The two attempted to persuade Garcia to come with them because they had "some work for him." They would not give Garcia any further information, except to say "by the Cafe Don Pedro." Garcia was tired and went home instead. About 9:30 p.m., he heard a radio broadcast about the murder of the United States Marines in the Zona Rosa district.

Garcia said that he went to work at the upholstery shop the next morning. Rivas came to the upholstery shop, followed by Ulises, who had a newspaper containing a report of the murders. Garcia overheard Ulises ask Rivas who had shot Julio. Rivas replied that he did not know because he had not heard any shots. Ulises stated that their group was now reduced to three members and they needed four to function. Garcia stated that he determined from the conversations he overheard that Ulises was the leader of a four man "cell" of the PRTC consisting of Rivas, Macias (also known as Felipe), and two other unidentified members. A man known as Walter led another cell. Mario commanded the leaders of several cells or groups. Ulises told Garcia about a total membership of approximately 15 people in the organization he believed to be the Mardoqueo Cruz Urban Commandos.

During his interview with the Border Patrol, Garcia asked about the $100,000 reward being offered by the United States government for information leading to the prosecution of the Zona Rosa killers. No promises or specific information about the reward money were given to Garcia, but he was told that the investigating agencies would be advised of his inquiry.

The information obtained from Garcia was passed to the CIA Station in El Salvador, which forwarded it to Salvadoran authorities.

On August 16, 1985, Garcia was voluntarily deported from the United States to El Salvador, where he was arrested at the San Salvadoran airport by the Salvadoran Treasury Police.

F. The Arrest of William Celio Rivas-Bolanos and Jose Abraham Dimas Aguilar

On August 12, 1985, acting on the information provided by Garcia, the Salvadoran National Guard raided the upholstery shop at which he worked, "Tapiceria Estrella." In the raid, the National Guard captured Rivas. Also arrested was David Wilber Villalta Ruano, another worker in the upholstery shop. No weapons or documents were found at the time of their arrest. Ulises eluded capture. The Salvadoran police believed that Ulises was in the upholstery shop at the time of the raid but fled out the back door when the Salvadoran police failed to block that exit.

1. Statements to Salvadoran Authorities

At the time of these arrests, El Salvador had declared itself under a state of siege as a result of the guerrilla war being waged. Under Salvadoran law, the investigation and prosecution of all cases involving guerrillas or terrorist activities were to be handled by the military and processed in military courts. Salvadoran law also provided that suspects could be detained incommunicado for a period of 15 days, during which time the military was entitled to investigate the offense. During this period, interviews and analysis of forensic evidence would be conducted and, at the conclusion of the fifteen days, turned over to the military court for determination of whether probable cause existed to try the prisoner.

(a) The Confession of Rivas

After Rivas' arrest, he was taken to National Guard Headquarters. The officers of the G-2 Section of the National Guard began to interrogate him 45 minutes after he arrived. Officers of the G-2 Section were trained in intelligence work and, according to a DOJ prosecutor who later investigated the Zona Rosa murders, "not versed in law enforcement investigatory techniques as we know them." The interrogation was conducted without any formal advice of rights. The focus of the interrogation was on locating Ulises and other terrorists identified by Garcia.

Rivas told the G-2 interrogators that Ulises could be found at a garage on the west side of San Salvador. An arrest team went to the garage and arrested the brother of Ulises, Jose Abraham Dimas Aguilar. Another suspect known as "Macias" escaped just ahead of the arrest team.

The initial interrogation of Rivas lasted about three hours in a cell at the National Guard. Questioning resumed later and lasted until 2 a.m. the next morning. Over the next four days, two military interrogators interrogated Rivas. Rivas was permitted to eat and use a bathroom as he wished. According to a DOJ prosecutor, however, sleep deprivation was probably used as a technique, and the interrogation generally lasted about 14 hours a day. The interrogators reported that they recorded their questions and Rivas' answers, but DOJ prosecutors were never able to obtain such records.

Because of concern for human rights violations, Salvadoran law provided that representatives of the International Red Cross were allowed to see prisoners during the 15-day period of incommunicado incarceration. Red Cross representatives were allowed to see Rivas on an unknown date during his first 15 days in prison, but they did not interview him.

During the four days of interrogation, Rivas admitted his past involvement with the FMLN and detailed terrorist acts committed by him and others. However, he continued to assert that he was not involved in the Zona Rosa killings.

On August 17, 1985, the fifth day of the interrogation, the National Guard interrogators confronted Rivas with the fact of Garcia's arrest and his statements to them. Rivas then gradually began to acknowledge his involvement in the Zona Rosa murders. Finally, on August 17, after a prolonged interrogation, Rivas confessed to firing on the Marines. Rivas also stated that Garcia was a sympathizer with the PRTC and acted as a front at the upholstery shop but was not personally involved in the murders.

On August 20, 1985, the lead Salvadoran investigator, or "Instructor," took a formal signed statement under oath from Rivas. Under Salvadoran law, such a statement may be taken any time within the first 15 days of the prisoner's detention. Present at the formal statement was a secretary appointed by the Instructor to record the statement. Two National Guard officers, neither of whom was directly involved in the Zona Rosa investigation or the interrogation, were also present. At the beginning of this statement, Rivas was advised of his rights under Salvadoran law. He was advised that he was considered innocent until proven guilty; he was not obligated to testify; he could not be coerced into a statement; and he was entitled to indemnity if the charges were found to be false. In a military investigation such as this, Rivas was not entitled to an attorney.

Rivas' signed statement included his description of his history with the guerrilla movement, beginning with his recruitment in 1981 through his establishment of the upholstery shop as a cover for terrorist activities. The statement then provided the following version of events surrounding the Zona Rosa killings.

Around June 14, 1985, Ulises told Rivas that they were going to "knock over some Americans" within the next several days. On June 19, 1985, Ulises confirmed that they were going to carry out the planned attack and that they should meet at the garage of Ulises' brother that afternoon. At 5 p.m., Rivas, Ulises, and another PRTC member called "Macias" met at the garage. Ulises told them that they should meet again at the Cafe Don Pedro at 8 p.m.

Rivas went to the Cafe Don Pedro that evening. At 8:50 p.m., Ulises arrived in a yellow Toyota pickup truck with Macias, Julio, Pepe, Walter, and two other men Rivas did not know. Ulises gave Rivas an M-16 rifle, a green knapsack containing ammunition, a cap, and a green camouflage shirt. Ulises told Rivas that he was part of the strike team and should fire his weapon when they arrived at their destination. Upon arriving at the monument of the Savior of the World, they met a light blue car that signalled to them by honking twice. The Toyota truck signalled back. Both continued on to the Zona Rosa.

When they arrived in front of Chili's Restaurant in Zona Rosa, Ulises got out of the truck and started firing at one table. Julio did likewise and yelled "There, Buddy," indicating that Rivas should concentrate his fire on the table where the Americans were sitting. Rivas opened fire on the table, shooting all the ammunition from his weapon. Rivas also accidentally shot Julio in the back when Julio crossed into Rivas' line of fire.

Walter and an unknown man were shooting their weapons in the direction of security officers at the Brazilian Embassy in order to keep them distracted. Pepe and the driver of the Toyota were covering the north side of the cafe. When Ulises thought that they had killed the foreigners, he shouted "Retreat," and they went back to the pickup truck. When they reached the truck, Ulises asked, "Where's Julio?" and realized that Julio was lying wounded in the gutter in front of the cafe. Ulises went back, picked up Julio, and carried him to the truck, and they drove away. After they had driven some distance, Ulises ordered Rivas out of the truck. Rivas left all of the equipment and clothing Ulises had given him in the truck. Rivas then went home.

Rivas went to work at the upholstery shop the next morning so that he would not arouse suspicion. Ulises also came to the shop that morning and asked Rivas why he had injured Julio. Ulises told Rivas that Julio was receiving treatment at the Red Cross. Because Rivas was afraid of Ulises, he said that he had not shot Julio and did not know who had.

Rivas reported in this statement that Jose Abraham Dimas Aguilar, the brother of Ulises, was aware of the plans for the attack and knew about discussions about it both before and after the attack. After the attack, Ulises ordered the cell to remain inactive for two months to avoid detection or apprehension.

On August 23, 1985, Rivas was taken to the scene of the Zona Rosa murders to re-enact the attack for the police. According to an FBI report, Rivas "displayed an intimate knowledge of the crime scene and the manner of the killings."

On August 24, 1985, Rivas was polygraphed by the CIA Station in El Salvador. Before beginning the actual polygraph, the CIA polygrapher conducted a "pre-test interview" during which Rivas admitted his involvement in the murders.

The polygraph confirmed that Rivas was being truthful about his involvement in the killings, but indicated that he was not being completely truthful when he denied that Garcia was involved in the killings. There was also an indication of deception when Rivas denied that he had deliberately given false information regarding which persons took part in the Zona Rosa attack and when he denied deliberately withholding information about the Zona Rosa attack. The polygrapher found that Rivas had an "indifferent attitude" throughout the polygraph and interview and appeared ready to accept the consequences of his actions.

A report describing Rivas' case was turned over to the military judge on August 28, 1985. Witnesses to the crime also appeared before the judge so that the judge could determine whether the statements in the report were true. Rivas was not present at this hearing. The two National Guard interrogators who had taken Rivas' written confession testified about the confession and stated that Rivas gave his statement without coercion.

On August 29, 1985, Rivas gave a statement to the judge. The judge and three Salvadoran prosecutors were present at the hearing, which was conducted at the National Guard Headquarters because of security concerns. The judge advised Rivas of his rights and made a tape recording of Rivas' statement. In the statement, Rivas again confessed to shooting the Marines. At the conclusion of the proceedings, the judge had the tape transcribed for Rivas' signature. [The tape and transcription were never obtained or located by DOJ.] The judge found probable cause to try Rivas, and the case was elevated to the trial stage.

(b) The Statement of Garcia

On August 23, 1985, Garcia allegedly made a statement to Salvadoran authorities in which he confessed to actual participation in the killings. Because Rivas had not implicated Garcia and because Garcia had not previously admitted participation, the National Guard separately took both men to the scene of the crime on August 23, 1985. As noted above, while Rivas demonstrated an intimate knowledge of the crime scene, Garcia was unable to provide any information as to how the attack occurred, and it seemed to the police as if he had never been at the crime scene. Garcia was questioned further and recanted his confession, saying that he had admitted to participation in the murders because of his fear of the police.

Later on August 23, 1985, Garcia signed a written statement which contained the following information.

Garcia said that he met Rivas while working in an upholstery shop in November 1983. Garcia discussed with Rivas past propaganda efforts in which Garcia had participated on behalf of the "revolutionary party." Rivas told Garcia that such efforts were out of style and that direct military action was required. In August 1984, Rivas proposed that they set up another upholstery shop with money provided by a "terrorist organization." Rivas told Garcia that he would ask "Charli" for the money, who would ask Mario. Ulises would pose as the owner. Garcia would get to split the profits from the shop's work. Garcia agreed, and the shop was opened in October 1984.

Garcia provided information on the type of surveillance and other information-gathering activities in which he allegedly participated while working at the upholstery shop. For example, Garcia reported that Rivas used the shop to observe the movement of National Police vehicles, which the group could subsequently attack.

Garcia stated that several days before the Zona Rosa murders, he learned there was going to be some action taken against "the Americans." On the day of the attack, Rivas told Garcia that the operation was to be carried out that day and said Garcia would hear about it on the radio that night. Garcia said he heard about the attack when he was listening to a soccer game on the radio. The next day Ulises came to the upholstery shop and explained how they had shot the Americans. Rivas interrupted to say that Macias had yelled "Long live Mardoqueo Cruz" during the attack. Rivas stated that the Brazilian Embassy guards had shot Julio. When Rivas left, Ulises told Garcia that Rivas had shot Julio but that Ulises was not going to say anything in order to avoid an argument. Ulises told Garcia that Pepe had been in charge of shooting at the Brazilian Embassy officers and that Julio, Macias, Rivas, and Ulises had fired on the Americans.

On October 3, 1986, Garcia filed a motion seeking his release. The motion argued that he had been forced to make a statement to the police in violation of his right to remain silent. This motion was denied, and he remained in custody.

(c) The Statement of Jose Abraham Dimas Aguilar

On August 20, 1985, Jose Abraham Dimas Aguilar (Dimas) signed a written statement in the presence of the Salvadoran National Guard. In it, Dimas admitted to knowing that his brother Ulises, together with William, Miguel, Macias, and Tiamina, met at Dimas' garage and that Dimas was aware they were members of a terrorist organization. Dimas was also aware that they were planning something, which he later deduced was the Zona Rosa attack. Dimas' statement also said, without explanation, that he later learned that all of the people mentioned in his statement were directly involved in the attack. Dimas' statement concluded that he "collaborated with the organization in the sense that he sheltered them in the garage and that Ulises was his partner."

On August 28, 1985, Dimas' statement was presented to the military court, and the next day he affirmed to the court that it was true.

(d) The Press Conference

On August 30, 1985, during a press conference in San Salvador arranged by President Duarte, Rivas admitted his participation as a shooter in the Zona Rosa attack. Dimas and Garcia both stated that they were members of the PRTC and had served in support roles in the attack, but they denied having participated directly in the killings.

(e) The Statement of David Wilber Villalta Ruano

On August 20, 1985, the National Guard interviewed David Wilber Villalta Ruano (Ruano), who had been arrested in the upholstery shop with Dimas and Rivas. Ruano stated that he met Rivas through Garcia and that he performed upholstery jobs for Rivas. On June 21, Ruano began work on an upholstery job for Rivas. While Ruano was working on this job in the upholstery shop, a man named Ulises came every day to read the paper and talk to Rivas in private. Ruano suspected that the two were involved in something bad because of the way they talked. Ruano told the National Guard that he did not know anything about the attack on the Marines aside from what he had read in the papers. Ruano viewed lineups that included Garcia and Rivas, and was able to identify both of them. He was later released from custody.

2. The Eyewitness Identification of Rivas

On August 24, 1985, [REDACTED] who was shot in the attack, was asked to view lineups at the Salvadoran National Guard headquarters. One lineup had five suspects, including Rivas. [REDACTED] viewed the suspects and asked that they wear black berets, because the gunman he saw on June 19 had been wearing such a beret. All five suspects were given black berets, and [REDACTED] identified Rivas as the man who fired at the Marines on June 19. [REDACTED] was not able to identify Dimas, Garcia, or Ruano in similar lineups.

[REDACTED] in the cafe, also viewed lineups containing Rivas, Garcia, Dimas, and Ruano. [REDACTED] was not able to identify any of these four men as the gunmen he saw on June 19th.

3. Salvadoran Charges against Rivas, Garcia, and Dimas

At the conclusion of the hearing before the military trial court, the judge certified an indictment charging the three defendants as follows:

Rivas: Subversive Association, Acts of Terrorism, First Degree Robbery (Auto)

Garcia: Subversive Association, Aiding and Abetting Subversive Propaganda, Acts of Terrorism

Dimas: Subversive Association

4. Salvadoran Theory of the Murders

As a result of its investigation, the Salvadoran National Police and National Guard reached several conclusions. The police concluded that the probable planner of the attack and leader of the "cover group"--the group that shot at the Brazilian embassy and watched for any defensive fire--was Mario Gonzales. The police believed that at the time of the attack Mario Gonzales was a member of the PRTC Central Committee and was in charge of the Mardoqueo Cruz, a small cell of the PRTC that was focussed on guerrilla activities within San Salvador. The National Police and National Guard also thought Mario Gonzales was responsible for other urban terrorist attacks carried out by the Mardoqueo Cruz.

The police also believed that Garcia and Dimas were members of this "cover group." The police concluded that Jose Antonio Lemus Figueroa (also known as Walter), Pepe, and two other unknown men were members of the "security and containment group," the group assigned to provide protection to the shooters. The police believed Walter to be a cell leader in the Mardoqueo Cruz. Police believed that Lemus and Pepe were also involved in an attack against National Police personnel in February 1985.

The police thought that the "annihilation squad"--the actual shooters--was made up of Ismael Dimas Aguilar, also known as Ulises, Jose Roberto Salazar Mendoza, also known as Julio, Jose Antonio Bolanos Rivas, also known as Macias, and William Celio Rivas Bolanos. Police believed that Ulises was acell leader in the Mardoqueo Cruz and had been trained in Cuba from May 1981 to December 1982, and in Nicaragua from August to December 1983. Ulises, Julio, and Rivas were all thought to have been involved in various acts of terrorism and sabotage in El Salvador for several years before the Zona Rosa attack.

As noted above, Julio was killed in the Zona Rosa attack when he crossed into the line of fire of Rivas. The two other alleged gunmen, Ulises and Macias, were never apprehended. Salvadoran authorities learned from four different sources that Ulises was killed at the Guazapa volcano in a battle with Salvadoran armed forces.

After the initial charges were lodged against Rivas, Garcia, and Dimas, their cases languished for some time. In 1987, DOS learned that, as part of the Central American peace process, the Salvadoran government was considering an amnesty for all prisoners accused of "political crimes," which potentially applied to the Zona Rosa perpetrators. An exception to the amnesty agreement was included for two other acts of terrorism against Americans in El Salvador--known as the Sheraton Murders and the Nun Murders--but no exception was made for the Zona Rosa case.

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