|
| THE DEPARTMENT OF JUSTICE'S
RESPONSE TO THE ZONA ROSA MURDERS |
C. Granting of the Parole Request by INS
On April 24, 1990, Jim Kiefer, an Immigration Officer in the INS Office of International Affairs, approved Andrade's parole. Kiefer specifically recalled the Andrade parole request because Gladys Lujan of the DOS Visa Office hand-carried it to him, with a letter dated March 30, 1990, from the Associate Director for Visa Services at DOS to the Commissioner of INS. The letter stated:
I am enclosing one humanitarian parole request for consideration by the Attorney General. This request has been reviewed by the Department of State and is considered to be within the appropriate guidelines established for such cases.
Kiefer explained to us that in 1990, cables from Embassies requesting parole came to INS through DOS. (Such cables now go directly from Embassies to INS.) Kiefer said that parole is granted under õ 212(d)(5) of the Immigration and Nationality Act, which gives the Attorney General discretion to grant paroles for "emergent reasons" or "for reasons strictly in the public interest." For administrative reasons, INS separated parole requests into two categories--humanitarian parole and parole in the public interest. Parole in the
public interest was a parole that would be of some benefit to the United States for whatever reason, while humanitarian parole had to be for some humanitarian purpose. In 1990, Kiefer handled both humanitarian and public interest paroles. Kiefer said that ninety percent of public interest paroles relate to criminal justice cases--either witnesses, defendants, or informants being paroled into the United States because of their benefit to the United States. Kiefer handled more than 100 such requests per year.
According to Kiefer, when Lujan delivered the parole request, she told him that she was personally bringing it to him because it was a "hot case" with a lot of pressure from the United States Embassy in El Salvador and because the request contained a classified cable. Kiefer said he remembered that he and Lujan also had lunch together after Lujan delivered the cable.
Kiefer said that INS generally grants paroles requested by DOS, without further investigation, unless the requests are inconsistent with current INS policy. Absent such special circumstances, none of which were apparent here, it was highly unusual for INS to deny a DOS request. Kiefer stated that the DOS request for Andrade's parole was a typical one that would have been taken by INS at face value. Kiefer said that everyone who is paroled into the United States "in the public interest" is ineligible for regular immigration for one reason or another. Kiefer noted that DOS certified in the parole request cable that Andrade had provided a service to the United States government and that his life was in danger. INS would not have undertaken an independent review of such a matter. Kiefer stated that his reading of the cable also indicated to him that the FBI had looked into the matter and that it was in favor of the parole.
Kiefer said that Andrade was probably given a three-year parole because he had relatives in the United States, and three years was the normal amount of time in which a parolee could apply for and receive permanent resident status through relatives. The normal length of parole has since been changed to six months to ensure more contact with the parolee and to allow INS to reassess more frequently the propriety of allowing the parolee to remain in the United States.
We believe that INS did not act improperly when it processed Andrade's parole in conformity with its normal procedures. INS relied on DOS, the government agency proposing the parole, to have properly coordinated with any other interested agency. INS did not normally, and should not be expected to, conduct an independent investigation into the facts of each parole request, the identity of interested agencies, or the positions of all interested agencies on each of its hundreds of parole requests. It was not unreasonable for INS to rely on the requesting agency to coordinate the parole request in advance and to provide notice to INS that the parole request was opposed by other agencies.
D. Andrade Enters the United States
On April 25, 1990, DOS notified the Embassy in El Salvador that INS granted Andrade's "parole in the public interest for three years from 4/27/90 to 4/26/93." Andrade did not enter the United States until late June 1990. Chidester reported that between April 25 and late June 1990, Andrade was providing detailed intelligence information and producing a CIA-funded propaganda film denouncing the Salvadoran guerrillas.
On June 26, 1990, the Embassy issued a boarding letter for Andrade to leave El Salvador for the United States. The CIA paid for Andrade's plane tickets. His flight was scheduled to depart on June 28. On that day, the CIA Station cabled CIA Headquarters that Andrade planned to leave for the United States the same day on a parole that had been arranged by the Embassy through the State Department "in coordination with concerned agencies in the U.S."
Andrade entered the United States on June 28, 1990 through Miami, Florida. INS records reflect his parole "in the public interest" on that date.
E. DOJ Attorneys Learn About Andrade's Parole
On July 10, 1990, AUSA Murtagh was first informed of the parole request and Andrade's entry into the United States. Murtagh learned about the parole in a call from either DOS attorney Andre Surena or CIA Attorney [REDACTED]. Murtagh said he was surprised and furious when he found out that Andrade had been paroled into the United States.
A memorandum for the record written by CIA attorney [REDACTED] on July 10, 1990, stated that he learned that DOS attorney Surena had just called Murtagh, who had been surprised about Andrade's parole. [REDACTED] then called Murtagh, who confirmed that he had not known about the parole previously. Murtagh emphasized his belief to [REDACTED]that Andrade was implicated in the murders, although there still was insufficient evidence available to mount a prosecution. [Moreover, on June 19, 1990, the statute of limitations had run on the Zona Rosa crimes.]
Murtagh said he thought that the CIA had "pulled a fast one," with Chidester's help, in getting Andrade paroled into the United States but there was not much Murtagh could do about it. Murtagh assumed that the parole was "a CIA operation" and that he was powerless to change the result. Murtagh said he spoke with his supervisors and that they agreed with his assessment. He did not pursue any effort to have Andrade deported. He said deporting persons already in the United States is much more difficult than preventing them from being admitted, especially if they have relatives here. Murtagh said he considered going public with the information about Andrade's parole, but he realized that he should not do this. He also wanted to, but ultimately did not, question the CIA about how Andrade was paroled into the United States.
TVCS attorney Biehl said he found out in July 1990 that Andrade had been paroled into the country when Murtagh called him. Biehl said that Murtagh was angry that Andrade had been paroled into the United States. Biehl agreed that it was fruitless to try to get Andrade deported, because Andrade had not received his parole by any fraud, but rather based on a request from DOS.
At some later time, Murtagh received a telephone call from Chidester, who was in the United States. Chidester stated that Andrade was in the Los Angeles area and wanted to be a witness against Martinez. Murtagh told Chidester, "Thanks, but no thanks," because Murtagh did not want to use Andrade as a witness. Moreover, as noted above, Murtagh said there was no evidence against Martinez. In addition, the statute of limitations had already run on any prosecution. Murtagh did not discuss the circumstances surrounding Andrade's entry into the United States with Chidester, and he did not speak with Chidester again.
F. DOJ OIG Conclusions with Regard to Andrade's Parole
Based upon our review of the record, DOJ's judgment that there was insufficient evidence to prosecute Andrade was reasonable. Most of the information in the CIA files was inadmissible hearsay. It was also gained through intelligence sources, which would have complicated its use. There was no indication that any of the witnesses against Andrade would be available to testify in a United States court. Moreover, Andrade's passing a polygraph and the Embassy's belief that he was not involved made any case against him difficult notwithstanding the inadmissibility of the polygraph results.
Andrade's worth as a witness was also minimal. His statements pointing to Martinez were self-serving and contrary to other information about Andrade's involvement in the murders. Andrade's evidence against Rivas was also indirect and not noteworthy.
We nevertheless believe that DOJ's objection to Andrade's parole was supportable. Significant intelligence, as opposed to admissible evidence, implicated Andrade in the Zona Rosa attack. Even his own statement indicated he had some involvement in preparations for the attack.
We also conclude that the March 1990 parole request for Andrade was mishandled by many people, including the FBI. We have no doubt that there was a clear interagency agreement between DOS, CIA, and DOJ, arising from the October 5, 1989, interagency meeting, that while Andrade could be debriefed in El Salvador by the CIA about intelligence matters, any proposal for the parole of Andrade into the United States would require further interagency discussions and agreement. DOJ's strong opposition to the parole was known--both in Washington and at the Embassy. The participants in the interagency meetings understood or should have understood that any future parole request must be coordinated with all the agencies involved.
Regardless of who was responsible for seeking the parole request--and there is significant disagreement among witnesses about that--it is clear that it should have been forwarded to all agencies concerned, and an interagency meeting should have been convened to discuss the proposed parole. This never happened. As a result, Andrade's parole was approved in the routine procedures dealing with parole requests.
The fault in this matter must be shared by many parties. The Embassy should have sent the parole request to the interested parties or notified them of it, rather than relying on a routine parole request to accomplish this task.
DOS employees who received the cable should have convened another interagency meeting to discuss the parole request.
We leave it to the CIA Inspector General to determine if CIA employees handled the parole request properly.
With regard to DOJ employees, the FBI failed to handle the parole request appropriately. When the parole request was received, FBI Headquarters and, to a lesser extent, WMFO, should have notified the DOJ prosecutors about the request.
It was not improper for INS to approve the parole request as it did. INS received no information about any controversy or objections to the parole when it reviewed the parole request. Absent any such indication, INS' reliance on representations in the DOS cable was appropriate.
We also find that the coordination of paroles needs improvement. The process for the approval of visas is better coordinated, with opportunity for objection by law enforcement to proposed visas in certain categories of cases. A procedure requiring coordination of parole requests should be considered. Such coordination would ensure that all the information necessary was available to the decision-maker and would keep other parole requests from slipping through the system, as this one did.
G. Current INS Actions Regarding Andrade
The recent focus of attention on Andrade's case has caused INS to review Andrade's immigration status. Beginning in January 1996, INS Office of General Counsel attorney Mary Jane Candaux began collecting information about Andrade from DOS, the CIA, the FBI, and the District of Columbia United States Attorney's Office to determine possible grounds for his exclusion.
Candaux learned that Andrade is living with his wife and children in New Jersey. Andrade's wife is a lawful permanent resident who has applied to become a United States citizen. To date, Andrade's wife has not filed a petition with INS to sponsor Andrade as a lawful permanent resident. Andrade's public interest parole expired after three years, and there is no record in INS that he applied for an extension when it expired. He is therefore currently in an illegal status.
In March 1996, an FBI agent was sent to El Salvador to gather documents about Andrade's guerrilla activities from the Salvadorans. The documents could be used to exclude Andrade from the United States. Candaux also sought CIA documents about Andrade's guerrilla activities. Caudaux said that the CIA would not allow her to take copies of the documents and redacted her notes concerning the documents. In addition, the CIA said it could not locate specific CIA cables that she requested regarding Andrade's parole.
INS is preparing to proceed against Andrade in exclusion proceedings and has stated that it will do its best to exclude and deport him from the United States. In her interview with OIG investigators on August 5, 1996, Candaux said that INS has not yet made a final decision with regard to the details of how to proceed with Andrade's case. First, INS has to decide whether to attempt to exclude Andrade and, if so, on what grounds. Candaux stated that INS is leaning towards moving to exclude him as a "person without documents," because Andrade's parole has expired and he has not moved to renew it. If INS tried to exclude Andrade as a suspected terrorist, it would need to use classified documents to prove this charge, and the documents would have to be disclosed to Andrade. The documents also could be used to rebut anticipated applications for relief from deportation.
On the other hand, if INS showed that Andrade is a "person without documents," the burden would shift to him to prove he is entitled to relief, perhaps by requesting political asylum. To receive political asylum, Andrade would have to prove that he has a well-founded fear of persecution in El Salvador and that the fear is based on one of five statutory grounds. The relevant grounds in this case will likely be "political opinion" or "membership in a particular social group." Alternatively Andrade could seek an "adjustment of status" because he is married to a lawful permanent resident or United States citizen. Yet, to receive an "adjustment of status," Andrade would have to prove that he is admissible to the United States. INS could contest this with evidence of his past terrorist activities on behalf of the PRTC and could use classified information in this part of the proceeding without turning it over to Andrade.
Candaux reported that exclusion proceedings, once initiated, can be very lengthy. If Andrade were detained, however, the process could be put on an expedited calendar and a hearing on the merits held within four to six months. If Andrade were not detained, the initial hearing usually would be held within one to two years, and a subsequent appeal to the Board of Immigration Appeals could take another one or two years. An appeal to a federal court of appeals could take an additional year or two. Candaux added that under the Immigration Act as amended by the Antiterrorism and Effective Death Penalty Act of 1996, exclusion of aliens without documents can be expedited. In order to take advantage of the expedited processes, however, exclusion proceedings would have to be initiated after November 1, 1996.
Candaux stated that a federal district court reviewing a decision by INS to detain Andrade would balance the largely hearsay evidence that Andrade was a terrorist against the fact that he has lived in the United States for six years, is married to a lawful permanent resident who has applied for citizenship, has two children who are lawful permanent residents, and has evidently lived a law-abiding life in the United States. It might also consider Andrade's provision of intelligence to the United States government, which resulted in his parole in the first place. The standard of review in a motion for habeas corpus that Andrade might file is whether the government has shown the alien to be a danger to the community and a risk of flight. Candaux stated that INS cannot show Andrade is currently a danger to the community but might be able to show he poses a risk of flight. However, Candaux was not confident that INS could win such a motion.
Candaux reported that INS is currently sorting out the classified and non-classified information on Andrade. Candaux stated that she is hopeful that a decision on the Andrade matter will be made in the near future at INS Headquarters.
1. Introduction
On May 21, 1995, a "60 Minutes" show discussed United States military involvement in El Salvador. Gilberto Osorio appeared on the show and admitted to being a guerrilla in El Salvador. He stated "we had made it a point to target some American servicemen" in an effort to induce the United States Congress to withdraw United States military advisors from El Salvador. The "60 Minutes" narrator, Ed Bradley, claimed that Osorio had admitted that he had helped plan the Zona Rosa massacre. In an interview published in the "San Francisco Examiner" on May 28, 1995, however, Osorio denied that he had admitted participation in the Zona Rosa murders.
This section will describe the information in DOJ's possession concerning Osorio and his participation in guerrilla activities.
2. DOJ Information on Osorio Before 1995
On July 10, 1985, the CIA asked the FBI to search its files for information on Gerardo Zelaya in connection with the Zona Rosa murders. The CIA had obtained Zelaya's name from documents captured from guerrillas. These documents did not indicate that Zelaya was personally involved in the Zona Rosa attacks, but suggested that he was a member of the PRTC. The CIA gave to the FBI Zelaya's name, which the CIA knew to be an alias, his date of birth, and information from the seized documents that he had participated in the occupation of the Salvadoran Consulate in San Francisco in 1978. Zelaya was also reported to be a sculptor who had worked at an art gallery in the San Francisco area.
From this information, the FBI was able to identify Zelaya to be Romeo Gilberto Osorio. The FBI reported that Osorio had occupied the Salvadoran Consulate in a protest occurring in April 1978. He was arrested in the protest, but the charges against him were later dropped.
The FBI also had information about Osorio in its files that had been obtained from a source in 1980. The source had notified the FBI that Osorio and Salvador Martinez of the Committee of Progressive Salvadorans (CPS) would be travelling from the United States to El Salvador in February 1980. The source advised that Osorio was one of the founding members of the CPS, which was formed in November 1979 to support the Bloque Popular Revolucionario (BPR), a Marxist terrorist group composed of students, peasants, and labor unions whose objective was to establish a Marxist government in El Salvador. The source also reported that Osorio had worked on "El Pulgarcito," a Salvadoran newspaper. The source reported that Osorio and Martinez were going to travel to Mexico City, where they would meet with Rafael Manjivar, a member of the Communist Party of El Salvador. They would then travel to El Salvador to establish direct contact with the guerrilla groups and join them in the struggle in any capacity that the Coordinadora [Leadership Coalition of Leftist Groups in El Salvador] wanted. The source advised that Osorio wanted to join the fighting groups or terrorists.
On July 10, 1985, another FBI source reported that Osorio and an unknown companion had gone from San Francisco to El Salvador in 1980. The source stated that the companion had been killed in fighting in El Salvador and Osorio had been wounded.
On July 22, 1985, the FBI reported to the CIA that the FBI San Francisco office had not heard any "talk on the streets" from its sources about the involvement of Osorio in the Zona Rosa killings. On July 23, 1985, the FBI forwarded two sets of black and white photographs of Osorio to the CIA.
On December 4, 1985, the FBI located and interviewed [REDACTED]. She stated that Osorio was born in San Francisco on March 1, 1947, but had grown up in El Salvador. When he was 18, he returned to the United States to join the United States Air Force. He served in the Air Force from 1966 to 1970, stationed at Travis Air Force Base. When he was discharged, Osorio attended San Francisco State University, where he first majored in physics. He later changed his major to art. [REDACTED] reported that Osorio had left for El Salvador sometime in 1980. She had heard from him only sporadically since then and believed that he was still living in El Salvador. The FBI was unable to locate records of Osorio's birth at the San Francisco General Hospital.
3. Recent FBI Interview of Osorio
On December 4, 1995, at the request of DOJ attorneys, the FBI interviewed Osorio in San Francisco. Osorio was informed that DOJ had requested the interview based on the recent media reports which suggested that he was involved in the Zona Rosa murders.
Osorio denied participating in the Zona Rosa murders. He told the FBI that he came from a large, prominent family in El Salvador which had family members in both the military and the government. In 1975, while living in San Francisco, he became involved in Central American political issues and was distressed by reports of violence against those who opposed the government in El Salvador. He believed that "death squads" were responsible for the death and disappearance of thousands of people in El Salvador, including religious leaders. Osorio said his political activities caused his family in El Salvador to consider him to be a "black sheep."
In January 1980, he and two friends travelled to El Salvador to assist the movement to overthrow the Salvadoran government. Upon arrival, they contacted members of the FMLN through an acquaintance and told the FMLN
members of their interest in participating in the revolution. Osorio and his friend were placed on probation status in the FMLN and given certain tasks to perform so that the FMLN could assess them and guarantee that they were not government informants. After about six months of screening, Osorio was accepted into the FMLN and assumed the name "Gerardo Zelaya." Osorio initially worked as an urban guerrilla in San Salvador for the Popular Liberation Front (FPL) "disrupting communications and transportation."
During 1982 and 1983, Osorio served as Chief of Operations for a 300-member battalion of the PRTC in San Vicente Province, about 80 kilometers northeast of San Salvador. During this time, its members came under attack from government forces. Osorio was told by his battalion members that Salvadoran government forces were being directly assisted by United States military advisors. Because these advisors were not supposed to be involved in the actual fighting, Osorio gave orders to treat any Americans encountered on the front lines the same as Salvadoran troops and to kill them if possible. Osorio stated that neither he nor his fighters ever actually killed any Americans.
In 1983, Osorio left the front lines and became an aide to guerrilla leader Nidia Diaz (whose true name is Maria Marta Valladares). Valladares is currently a member of the Salvadoran Congress. She was then a member of the Central Committee of the PRTC in San Vicente. Osorio worked on propaganda targeted at the civilian population and other "ideological matters." Osorio worked in this position for two and a half years.
Osorio stated that in 1985, when the Zona Rosa attack occurred, he was about 100 miles north of San Salvador. He said that he did not know about the attack in advance and was not involved in it. Osorio said that Valladares and Congressman Francisco Jovel could confirm that he was not involved in the Zona Rosa attacks.
Osorio said that when he learned that the Mardoqueo Cruz unit of the PRTC had claimed credit for the killings, he felt good about it for three reasons. First, it indicated to him that there were PRTC commandos in San Salvador. He had previously thought that the city was too tightly controlled by
the government for commandos to operate. Second, he thought the killings would publicize the issue of the United States military in El Salvador and bring to light the real role the Americans were performing. Finally, Osorio felt that it might help weaken the resolve of Americans to continue fighting in El Salvador.
Osorio stated that after the Zona Rosa killings, the air war intensified against the FMLN. In an effort to reduce casualties, FMLN units dispersed into the countryside.
Osorio said he continued to work for Valladares from 1985 to 1987, but moved from place to place during a restructuring of the PRTC. He was transferred to Guazapa and encountered two of the eight individuals who participated in the attack. The two introduced themselves as Ulises and Walter. Osorio reported that one of the two was later killed in an accident and the other was killed in combat. Osorio stated that to the best of his knowledge, the three individuals who were convicted and sentenced to prison for the attack in El Salvador are the only individuals involved in the Zona Rosa attack who are still living.
Between 1987 and 1989, Osorio was a PRTC Unit Commander. He was placed in charge of explosives units consisting of seven to ten individuals who operated in the northern part of El Salvador. Osorio had no training in explosives and learned everything on the job. He and his unit constructed various types of explosives for use in the field, including anti-personnel mines, land mines, and grenades. Osorio set up explosives-producing shops along the Honduran border. These shops produced numerous explosive devices for use in the guerrilla war. To his knowledge, none of the explosives were ever used against North American military personnel, civilians, or property.
Osorio was questioned about the "60 Minutes" segment and Ed Bradley's statement that "in 1985, Osorio says he helped plan the assassination of four Marines at this outdoor cafe." Osorio denied any involvement in the killings and said that he had protested to "60 Minutes" the statements attributed to him. Osorio said that "60 Minutes" had issued a clarification of Osorio's statement four weeks later. Osorio stated that he had agreed to participate in the "60 Minutes" taping in order to publicize the United States involvement in El Salvador and the corresponding need to recognize the United States military personnel who served there. Osorio added that the other participants in the taping, United States Army Green Beret Greg Walker and retired General Joseph Stringham, told him that they knew he was not involved in the killings.
Osorio denied ever having worked for the CIA or any other United States government agency. Osorio said he returned to the United States in December 1991. He stated that he worked at the Mission Cultural Center in San Francisco. Osorio said he received a $3500 grant from the National Endowment for the Arts in 1992 for an experimental project on the Mayan calendar. The project involved dance, sculpture, masks, and music.
Osorio stated that he never knew anyone named Pedro Antonio Andrade. On December 6, 1995, he told the FBI agent who had interviewed him that he had heard that newspapers in El Salvador had recently reported that Pedro Antonio Andrade was suspected of working for the CIA.
In interviews with OIG investigators, the DOJ attorneys assigned to the Zona Rosa case said that they had never heard the name Gilberto Osorio before the "60 Minutes" broadcast. After that broadcast, DOJ Attorney Biehl took the lead in investigating Osorio. Biehl uncovered no evidence linking Osorio to the Zona Rosa attack. As discussed above, during the week of February 20, 1996, an FBI agent travelled to El Salvador to review all evidence in the possession of the Salvadoran authorities concerning Rivas, Pedro Andrade, and Gilberto Osorio. The FBI agent reviewed the National Police files, but did not find any mention of Osorio.
AUSA Murtagh said that while Osorio may have cheered the Zona Rosa attack, he could not be prosecuted for it, even if the statute of limitations had not run. Moreover, he could not be excluded from the United States because he is a United States citizen.
Our review of DOJ files uncovered no evidence that Osorio or "Gerardo Zelaya" was involved in the Zona Rosa attack.
#####
|
| THE DEPARTMENT OF JUSTICE'S
RESPONSE TO THE ZONA ROSA MURDERS |