IV. THE ENTRY OF ZONA ROSA SUSPECTS INTO THE UNITED STATES
This section addresses SSCI's Question 6.
Question Six: (a) What role did DOJ play in determining whether any of the known or suspected perpetrators/intellectual authors of the murders, or members of their families, were authorized to travel to or take up residence in the United States?
(b) Under what conditions and with what justification did this occur?
(c) Did any wrongdoing, negligence, or breach of procedures occur in allowing known or suspected Zona Rosa perpetrators/ intellectual authors to enter or remain in the United States and, if so, by whom?
(d) If suspected perpetrators/intellectual authors of the murders are in this country illegally or without current authorization, what is being done to correct the situation?
Two persons allegedly connected to the Zona Rosa murders, Pedro Andrade and Gilberto Osorio, are currently living in the United States. At the time of Andrade's arrest in El Salvador in 1989, he was alleged to have masterminded the attacks. In June 1990, he was allowed to enter the United States on a three-year public interest parole. Osorio is a United States citizen currently living in San Francisco. In 1995, a "60 Minutes" television show reported that he admitted participating in the Zona Rosa murders. Osorio denied admitting this or having any connection to the murders.
In this section of the report, we will first describe in detail the process by which Andrade was permitted to enter the United States, then describe the information DOJ had on Osorio.
B. The Parole Request for Andrade
1. Andrade's Arrest in El Salvador
On May 28, 1989, Andrade was arrested by the Salvadorans. At the time of his arrest, the Salvadorans and the CIA believed that Mario Gonzales had played a key role in planning the Zona Rosa attack. A May 30, 1989 CIA cable recounting Andrade's debriefing by Salvadoran authorities stated: "Thus far `Mario Gonzales' is not talking, although he has admitted he is, indeed, `Mario Gonzales' and that he played a role in the Zona Rosa attack." No further information about Andrade's alleged admission to Salvadorans was provided, nor is DOJ aware of any more detailed information about this statement.
On May 30, 1989, the CIA Station in El Salvador questioned CIA Headquarters about whether Andrade could be prosecuted in the United States and whether the case should be pursued. The Station said that it considered the case to be important and that it was imperative to bring the full weight of the law to bear on the man responsible for the death of four United States Marines.
Also on May 30, 1989, the CIA sent a request to the FBI entitled "Request for traces on individual responsible for the massacre of U.S. Marines in San Salvador in June, 1985." The request sought any criminal records on Andrade or other information in FBI files on him. The request stated, "Andrade has been identified as responsible for the 1985 Zona Rosa Massacre where four U.S. Marines were killed." The CIA reported that the Salvadoran police had found several documents on Andrade's person and in his home which tied him to the United States, such as a United States Social Security number for Andrade, a California identification card, a check cashing card issued in 1981 indicating that he worked for the Marriott Corporation, various other identification cards from the United States, and a slip of paper with an address in Cliffside Park, New Jersey. The FBI ran searches for information on Andrade in its files but found nothing.
2. DOJ Learns of Andrade's Arrest
AUSA Murtagh first learned of the arrest of Mario Gonzales when CIA Office of General Counsel (OGC) attorney [REDACTED] called Murtagh on May 30, 1989, and requested that he come to CIA Headquarters to view an important cable. Murtagh went to the CIA that evening and met with [REDACTED] and CIA OGC attorney [REDACTED]. They told Murtagh that an individual named Mario Gonzales had been arrested in El Salvador and had said to Salvadoran authorities: "I can tell you something about Zona Rosa, but only if I can come to the United States." He had also said that he could identify someone who had masterminded the Zona Rosa murders.
[REDACTED] asked Murtagh to consider paroling Mario Gonzales into the United States to help with the Zona Rosa case. She told Murtagh that Mario Gonzales "might be involved in the Zona Rosa matter, but that CIA officers in El Salvador could not wait to get their hands on him" for intelligence information. Murtagh did not recognize the name Mario Gonzales.
The next day, Murtagh reviewed the FBI prosecution report. He realized that Mario Gonzales was listed in the FBI report and CIA documents as one of the planners of the Zona Rosa attack. Murtagh said he called [REDACTED] and expressed strong concerns about the CIA's request for a parole in light of the fact that the CIA had previously identified him as being involved in the Zona Rosa murders.
3. Proposed Interview of Andrade
On June 2, 1989, the FBI directed Mexico City Assistant Legat [REDACTED] to travel to El Salvador to interview Andrade. DOJ prosecutors believed that, to avoid taint on any potential criminal case against Andrade, [REDACTED] should conduct the interview without the presence of any CIA employees. Murtagh recalled telling the CIA and DOS that he did not want any CIA employees to interview Andrade about the Zona Rosa case. The CIA Station Chief also remembered that a line was drawn early on that the Station was not to have anything to do with questioning Andrade about Zona Rosa.
DOJ's cautioning against any CIA involvement in the interview of Andrade was consistent with CIA cables we reviewed. On May 31, 1989, CIA Headquarters sent a cable to the CIA Station in El Salvador stating that the CIA "cannot be responsible for Andrade's entry into nor domicile in the U.S." It added: "To avoid involvement of [CIA case officers] in any potential criminal investigation, an [Embassy officer] representative should act as debriefer if Andrade decides to cooperate. A Station officer may sit in on the debriefing, but should refrain from actively participating in it."
On May 31, 1989, the Station reported that Andrade had led the Salvadorans to the largest single cache of guerrilla arms ever captured in the history of the Salvadoran insurgency. The Station considered this to be a major intelligence success attributable to Andrade.
On June 1, 1989, CIA Headquarters advised the Station that a DOJ representative would be travelling to San Salvador to debrief Andrade on the Zona Rosa killings. The Station was instructed not to become involved in developing the chain of evidence against Andrade and to have the Salvadoran police deal directly with DOJ.
On June 1, 1989, the CIA Station responded to the cable from CIA Headquarters, stating that it was disturbed by the previous cable "since it now appears to indicate that DOJ and not the CIA is now directing this case and that the Zona Rosa massacre, and not what else [Andrade] can give us about the FMLN and PRTC is now our most important goal." The cable continued:
While we feel strongly that he should be punished accordingly if it can in fact be proven that he was involved in the Zona Rosa massacre, we are also anxious not to lose control of this case until we can get out of him the rest of the important intelligence he says he has. Hence we are very much opposed to sending in [DOJ] at this particular moment to begin grilling him about the Zona Rosa. . . . Hence we would like to ask your assistance in calming [DOJ] down for a few days and asking them not to move to send in a representative from outside until we can all review the case again next week."
On June 2, 1989, the CIA Station sent another cable to Headquarters requesting permission to debrief Andrade directly. The Station stressed the importance of Andrade's information, including information relevant to safety issues surrounding Vice President Quayle's impending trip to El Salvador. By a return cable on June 2, CIA Headquarters granted the Station permission to debrief Andrade either directly or indirectly. Headquarters again made clear, however, that Station personnel should refrain from discussing the Zona Rosa case and should excuse themselves from any interview when Andrade began discussing it.
4. Washington Meetings Regarding Interview of Andrade
On June 7, 1989, Murtagh met with DOS and CIA officials at DOS concerning the Andrade case. Murtagh retained handwritten notes of this meeting. He recalled that the meeting resulted in an agreement that the Andrade matter would be treated as a criminal case and that a potential criminal prosecution of him would take precedence over other matters. At the meeting, Andre Surena, the DOS Assistant Legal Adviser for Law Enforcement and Intelligence (L/LEI), asked if DOJ and the CIA were on a collision course concerning the potential prosecution of Andrade. Murtagh recalled that CIA's [REDACTED] replied that they were not and that the CIA had no objection to the prosecution of Andrade. The question was also raised whether Andrade could be informed that he would not face the death penalty in the United States. Murtagh answered that Andrade could be told this because the death penalty was not available under applicable United States statutes.
Robin Frank, an Attorney-Advisor in L/LEI, also attended the meeting and took notes. Although she said that she had little memory of the meeting, her notes support Murtagh's recollection. They indicate that the CIA stated that it was "not prepared to take Andrade" and that the CIA had instructed the Station in El Salvador not to debrief Andrade on anything related to the Zona Rosa killings.
On June 8, 1989, CIA Headquarters sent a cable to the Station recounting the June 7 meeting. The cable stated that all present at the meeting had agreed that the best alternative would be for Andrade to stand trial in El Salvador for his participation in the Zona Rosa murders. The cable reported that DOS Legal Officer Richard Chidester was exploring this possibility with the Salvadorans. The cable added that the "fallback position would be to explore the likelihood of the Salvadorans sending Andrade to the U.S. to stand trial. In this vein, [DOJ] is exploring various options and has indicated some willingness to deal with Andrade should he be willing to cooperate, but the deal certainly would not include any grant of immunity from prosecution."
5. Interview of Andrade by the FBI and Chidester
As a result of the understandings between Murtagh, DOS, and the CIA, the FBI Assistant Legat from Mexico City, [REDACTED], travelled to El Salvador to interview Andrade about the Zona Rosa case. [REDACTED] had no involvement in the Zona Rosa matter before this trip. The Panama Legat, [REDACTED], had previously worked with DOJ prosecutors on the Zona Rosa investigation, but the United States Embassy was moved out of Panama because of the United States invasion of Panama, and [REDACTED] was unavailable for work on the Zona Rosa case. [REDACTED] was asked to substitute for [REDACTED] in interviewing Andrade.
DOS Legal Officer Chidester participated in the interviews of Andrade. According to a cable from the CIA Station on June 10, 1989, the CIA Station decided to forego direct participation in the debriefing of Andrade, despite CIA Headquarters permission to do so. The Station stated that it made this decision partly because Chidester's goal was for Andrade to end up in the United States judicial system, and the Station did not want CIA officers involved in a potential criminal case. The Station reported that Andrade could provide significant intelligence information, but he was unlikely to be cooperative unless he was offered something in return. Station employees briefed Chidester before Andrade's interview about areas of interest to the Station, such as arms caches, guerrilla personnel, and guerrilla activities.
On June 6, 1989, [REDACTED] and Chidester interviewed Andrade at the National Police Headquarters. [REDACTED] report of the interview stated:
In response to a question directly asking him if he had been involved in the [Zona Rosa] incident he replied in the affirmative and stated that he would like a chance to explain his involvement because he considered it to be minimal in comparison to others.
Andrade said that he was willing to answer questions about the Zona Rosa killings but that he was very tired and would prefer to do it another time. The interview was adjourned until the next day.
On June 7, 1989, [REDACTED] interviewed Andrade again. Chidester was not present. During this interview, Andrade provided the following information, which [REDACTED] recorded in his interview report. Andrade stated that he was a member of the PRTC and had planned and overseen many of the military actions that the PRTC had carried out in San Salvador. However, when PRTC guerrilla leader Rogelio Martinez came from the countryside into San Salvador in the spring of 1985, Andrade was cut out of some of the PRTC planning because Martinez outranked him and dealt directly with their superiors in the PRTC.
Andrade said that when guerrilla leaders Nidia Diaz and Miguel Catellanos were captured in the spring of 1985, Martinez began talking about the need for taking some kind of action that would adequately respond to this setback and would build up the guerrillas' morale. In early June 1985, Martinez asked Andrade to make sure that safehouses were available in the area of San Salvador and that a doctor or a clinic was also made available in case someone was injured in some kind of activity. At noon on June 19, 1985, Andrade met with Martinez at a restaurant. Martinez again questioned Andrade about the availability of safehouses and medical services. Martinez told Andrade that there was a military action planned that would be against the "Cheles" [white people]. Martinez urged Andrade to contact Ulises that afternoon because Martinez thought Ulises would be able to provide the telephone number of a doctor. On the afternoon of June 19, at about 5 p.m., Andrade met with Ulises in a restaurant that Andrade believed was called Don Pedro. Ulises did not have any information on a doctor or a medical facility.
Andrade reported that on June 20, 1985, he met with Martinez again. Martinez told Andrade that the incident the night before in San Benito [the area where the Zona Rosa is located] had been planned and carried out by his people. Martinez told Andrade that the action did not go exactly as planned and suggested that Ulises had "slipped up." Martinez said that he thought a member of an "international organization" had been hurt. Martinez did not specify what he meant by this.
Andrade said that on June 22, 1985, Martinez and Andrade met again. Martinez told Andrade that Julio had been injured, but that the June 19 action had been considered a success. Martinez told Andrade that he was preparing an "official communication," which Andrade took to mean a public announcement, concerning the incident. Martinez also said that he had to take Julio to the Red Cross because no medical facilities had been pre-arranged. Andrade could not provide any details about the current location of Martinez.
Andrade emphasized in his interview with [REDACTED] that many people believed that he was the planner of the Zona Rosa killings because of his rank in the PRTC but that his role had been as he described. Andrade said he believed that the active participants in the Zona Rosa killings were Julio, Martinez, Ulises, and Misael Cruz. [DOJ had no other information concerning who Misael Cruz was or whether he had any involvement in the Zona Rosa attack.]
Andrade stated that when he contacted Ulises for the number of a doctor on the afternoon of June 19, he "knew full well that he was participating in the overall plan which would be carried out at some time in the near future." Andrade also admitted that he knew that an action was to be taken and that it was against "gringos."
Andrade stated that he had travelled illegally into the United States in the early 1980s and lived in the Los Angeles area with relatives. He returned to El Salvador because he had been run over deliberately by a car driven by African Americans in Los Angeles and was seriously injured. He said that he decided it was just as safe to be fighting in the jungles of El Salvador as it was to be on the streets of Los Angeles.
On June 8, 1989, Andrade was interviewed again by [REDACTED] and Chidester. Andrade stated that he had heard that Ulises had taken refuge in the Mexican Embassy in El Salvador after the shootings and that he was later aided in getting out of the country by a man he knew as "Fernando." Andrade identified a picture of the Mexican Ambassador to El Salvador as "Fernando."
On June 14, 1989, the Station reported to CIA Headquarters that Chidester planned to have Andrade polygraphed to verify the extent of his involvement in the Zona Rosa killings.
6. Andrade's Polygraphs
On July 5, 1989, at Chidester's direction, Andrade was polygraphed by the Salvadoran Special Investigative Unit (SIU). In Chidester's interview with OIG investigators, he said that he knew polygraphs were not conclusive, but he believed that, based on the findings of the examination, he would be in a better position to decide on a plan of action with regard to Andrade. According to a CIA cable in June 1989, Chidester believed that if the polygraph substantiated Andrade's claim that he was not directly involved in the Zona Rosa attack, there would be little United States interest in prosecuting him. The cable stated, "Whatever the outcome of the polygraph exam, [Chidester] would be in a better position to decide on a course of action."
In his first polygraph exam, Andrade answered the following questions, with the following conclusions by the SIU polygrapher:
Q: Did you, either individually or in conjunction with others, participate in the planning of the Zona Rosa Massacre?
Result: "The polygraph results were indecisive, although the initial inclination was for truthfulness."
Q: Did you directly participate in the attack at the Zona Rosa? (Were you present at the time of the action?)
Q: Did you arrange for medical services and secure a safehouse in the Zona Rosa Massacre?
Q: Did you secure arms for use in the Zona Rosa massacre?
Q: Did you visit a safehouse with Dimas (Ulises) on or about June 15, 1985 to prepare the arms?
The polygrapher stated that there may have been some difficulty with the exam because Andrade was recovering from a cold and still had a cough. The polygrapher said that under normal circumstances the test would have been rescheduled.
On July 20, 1989, Andrade was polygraphed again by the SIU on the three questions in which the response was considered inconclusive. According to an Embassy cable, the results of the second polygraph supported the truthfulness of his denials of involvement in the murders. The United States Embassy also stated that Andrade was reported to have answered truthfully that the arms used by the PRTC in the Zona Rosa attack originated in Nicaragua and that he recognized a photograph of Rivas as a member of the PRTC but did not recognize Garcia.
In his interview with OIG investigators, Chidester claimed that the FBI had reviewed the polygraph results and concurred with them. We saw no evidence of this. There is no record in the FBI files that it was ever sent the results of this polygraph for review. Moreover, according to an Embassy telegram, the results of the polygraph were sent to the National Academy of Lie Detection (NALD) for quality control, not to the FBI.
Murtagh told us that he was aware that Andrade was going to be polygraphed by the SIU before it happened. He did not remember who suggested that it be done or how he was informed about it. Murtagh said he did not oppose the polygraph, but he knew that it would not resolve all of the concerns about Andrade's involvement in the Zona Rosa killings. Murtagh also said he does not put great stock in polygraphs, having seen someone fail and pass the same questions in different polygraph sessions. Murtagh did not recall why an FBI polygrapher was not used, rather than a less-skilled SIU polygrapher. Murtagh did not attempt to stop the SIU polygraph because he did not think it would affect any potential United States prosecution of Andrade.
7. DOJ Efforts to Review CIA Documents
In a letter from Murtagh to the CIA dated June 28, 1989, Murtagh asked for all CIA documents regarding Andrade, including any polygraph results. On July 17, 1989, CIA OGC Attorney [REDACTED] responded in writing that CIA documents were available for review but that it was not possible to release copies of CIA documents before the CIA was advised of their possible use. On July 21, 1989, Murtagh responded to [REDACTED] letter by writing that he was becoming convinced of Andrade's involvement in the Zona Rosa murders, and he wanted copies of all documents to thoroughly review the matter. His letter stated that he had no plans to release any of the documents without CIA approval.
On July 22, 1989, the CIA Station requested CIA Headquarters' assistance in encouraging DOJ to come to a decision on the Andrade case. The Station explained that it was aware that AUSA Murtagh had said he could not evaluate the case until he received materials from CIA Headquarters. The Station requested that Headquarters facilitate the release of the requested materials to Murtagh so that DOJ could make a decision.
On August 9, 1989, CIA Headquarters reported in a cable to the Station that it was attempting to get a resolution from DOJ on the Andrade case but that DOJ still had not reached any decision on the matter. CIA Headquarters stated that the "Station should realize that potential criminal defendants often try to make 'deals' in exchange for information and that Justice rarely agrees to such 'deals' unless they will be of benefit to Justice in future prosecutions."
The Station responded on August 9, 1989, that Chidester had just returned from Washington and had said that DOJ could not make any decision on the Andrade case because the CIA still had not provided relevant documents to DOJ. According to the cable, Chidester reported that DOJ still had not received documents from the CIA relating to the CIA polygraph of a Zona Rosa defendant [Rivas] because the CIA had not been able to locate these materials. The Station asked Headquarters to ensure that DOJ is "indeed satisfied that [the CIA] is doing its best to cooperate in this case." In September 1989, the CIA made documents available for Murtagh's review.
8. The Embassy's September 1989 Request for DOJ Decision on Prosecution and the Issue of Parole
On September 11, 1989, the United States Embassy in El Salvador sent a cable to DOS requesting that DOJ decline to extradite and prosecute Andrade. Chidester drafted the cable, which was signed by Ambassador William Walker. The cable was sent to DOS' Latin American Affairs Section as well as to Robin Frank of the Legal Adviser's Office. The cable stated that the Embassy had "meticulously reviewed all telegraphic documents and we believe we have a good idea of the sequence of events of the massacre." The cable said that the "evidence does not support a finding that [Andrade] was involved in either the planning or implementation of the crime." The cable reported:
Embassy has reviewed available files on the Zona Rosa case with a view to determining the extent of culpability of Pedro Antonio Andrade Martinez aka Mario Gonzales. The issue is of critical importance because of the alleged knowledge Andrade may have of an intelligence value. [The CIA] would like to exploit Andrade's knowledge but is reluctant to do so until the issue of his involvement in the Zona Rosa massacre is cleared up.
So far the "eyewitness" testimony against Andrade comes from two sources whose testimony was admittedly later discredited: One source, Garcia Melendez, initially believed to have been at the scene and therefore have first hand knowledge, later turns out to have been merely a gofer; Rivas admits to lieing [sic] about Garcia's involvement and it is significant to note that during his first statement he made no mention of Andrade.
The cable also referred to the polygraph of Andrade and stated:
He was specifically asked whether he had participated in the planning or the implementation of the crime. He was determined to be truthful in his response that he participated in neither. The results of the polygraph were sent to the United States for a quality control review. The review confirmed the analysis of the original polygraph.
The cable concluded:
We suggest that there is not now sufficient evidence to implicate Andrade as the intellectual author of the Zona Rosa massacre. We recommend that the Department of Justice issue a statement foregoing any request for extradition of Andrade and acknowledging lack of sufficient evidence to pursue a prosecution at this time would be helpful [sic].
During the OIG investigators' interview of Chidester, he said that he had sought the parole for Andrade in collaboration with the CIA Station in El Salvador. He said that the "whole idea" of bringing Andrade into the United States came from CIA Station employees, who had asked Chidester if there was a way to get Andrade into the United States. Chidester said there was agreement on the Embassy team--including the CIA--that Andrade should receive a parole into the United States because of his intelligence value.
According to CIA Station employees, they initially supported the parole request for Andrade. The COS admitted in interviews that, at least at the time of the initial parole request cable, he did not oppose Andrade's parole into the United States. CIA cables also show that the Station fully supported the Embassy's position on parole for Andrade. On September 22, 1989, the CIA Station in El Salvador sent a cable to CIA Headquarters stating that the Station Chief and the CIA Chief Liaison Officer had met with Chidester and the Consul General of the United States Embassy to discuss Andrade. The cable reported that Andrade had asked to be sent to the United States. The Station asked the Consul General if the offer to send Mario Gonzales and his family to the United States was "feasible." The Consul General had reported that the decision was for the Attorney General and suggested that the CIA attempt to influence DOJ's reaction to the State Department's parole request. According to the cable from the Station, the Consul General asked that "[the CIA] chip in to help, at the [Headquarters] level in every way possible that we can. Appreciate [Headquarters] doing the needful [sic]."
On September 25, 1989, the CIA Station sent a request to CIA Headquarters seeking Headquarters' concurrence with a proposal to provide financial assistance to Andrade's family. The Station reported that Andrade had agreed to divulge everything he knew about the FMLN and its activities, to make videos and public appearances "unmasking the FMLN," and to work operationally with the Salvadoran Security Services in exchange for a promise of clemency in El Salvador and a cash settlement of $10,000 for himself and his family. The Station proposed setting up a fund for Andrade's family, with an initial amount of $20,000, with additional monies paid to Andrade's family depending upon the significance of the intelligence he provided.
On September 27, 1989, the CIA Station cabled Headquarters again and requested that a CIA Senior Case Officer contact Chidester, who was in Washington. The Station stated that Chidester had assured the Station that "Justice had no intention of prosecuting Andrade" and, based on this assurance, "Vice Minister Montano authorized the National Police to pass sufficient funds for travel of Andrade's wife to Mexico to bring children back from El Salvador. Montano understood that Station funds would be used for this purpose." The cable further stated:
We will not pass any more funds until [CIA headquarters is] able to clarify situation; however, we are well down the road on this, and it will be extremely embarrassing to the Station, U.S. Embassy, and [the United States Government] if we unable [sic] to get Justice's immediate clearance. Without belaboring the importance of this issue, the Mario Gonzales case has been discussed between the Ambassador and President Christiani; the information he is believed to be willing to divulge is anticipated to be explosive, particularly in providing information on arms supply routes and direct links to the Sandinista government.
9. Washington Interagency Meetings Concerning the Parole Request
(a) September 27, 1989, Meeting Between DOJ and CIA
The Embassy's parole request for Andrade was met with skepticism by DOJ, which believed Andrade to be connected to the Zona Rosa attack. AUSA Murtagh and other prosecutors reported to us that they were strongly opposed to granting Andrade a parole into the United States because of his suspected involvement in the Zona Rosa murders.
As a result of the parole request for Andrade, on September 27, 1989, AUSA Murtagh, the lead attorney on the case, and DOJ TVCS attorney Biehl met with CIA OGC attorney [REDACTED] to discuss the Andrade case. According to the recollections of the DOJ attorneys, as well as a Memorandum for the Record drafted by [REDACTED] shortly after the meeting, [REDACTED] told the DOJ prosecutors that Andrade had agreed to provide intelligence information if he and his family were brought to the United States and if he received immunity from prosecution in the United States and El Salvador. [REDACTED] also said that Andrade refused to provide any information until his demands were met and that his intelligence information was deemed to be of sufficient value to take his demands seriously.
Murtagh responded that any request for immunity for Andrade in exchange for intelligence would have to be made in writing and sent through proper channels for DOJ concurrence. Murtagh also said that a final decision on the prosecution could not be made until he was allowed to review all of the information on Andrade held by the CIA. Murtagh stated that his personal reaction was that DOJ would not agree to paroling Andrade into the United States and that a grant of immunity would be contrary to DOJ policy.
An FBI report shortly after the meeting stated that DOJ and the FBI advised [REDACTED] at the meeting that DOJ and the FBI were adamantly opposed to immunity for Andrade and saw no reason to offer him parole into the United States.
On September 28, 1989, CIA Headquarters cabled the Station and stated that, at that time, DOJ had no plans to extradite, indict, or prosecute Andrade or to call him as a witness in the prosecution of other Zona Rosa perpetrators but, "on the other hand, Justice made it clear that it is not willing to grant immunity to Gonzalez or to allow him to be paroled into the United States due to his past activities." The cable stated that DOJ had no objection to the CIA's providing assistance to Andrade's family in exchange for intelligence, but stated that the Station "should refrain from inducing [Andrade] to cooperate by making any other type of commitment to him without prior [CIA Headquarters] authorization." The cable specifically instructed the Station, "In the future, if Station should receive any information from Chidester regarding Justice plans/intention, for this case, request Station seek guidance from [Headquarters] before taking any action on Chidester's uncorroborated information."
(b) September 29, 1989, Meeting Between DOJ and DOS
On September 29, 1989, DOJ attorneys met with DOS officials at DOS about the parole request for Andrade. Present at the meeting on behalf of DOJ were Murtagh, Biehl, a DOJ Office of International Affairs attorney, and FBI Special Agent [REDACTED]. Robin Frank represented DOS, as did Chidester, who was in Washington at the time.
According to Murtagh's recollection and his notes of the meeting, Chidester described a deal that had been worked out for Andrade with the Salvadoran authorities. Murtagh described the deal as "time served" for Andrade, relocation of his family to a country in the region, and financial assistance in exchange for Andrade's providing intelligence to the CIA. At the meeting, Chidester reported that Andrade wanted to come to the United States. Andrade had been given no promise of immunity regarding United States prosecution and had been told that he would be prosecuted if he had lied about his lack of involvement in the Zona Rosa murders. Murtagh said that he responded that any proposal to bring Andrade to the United States would: (1) have to be in writing; (2) require that the CIA provide DOJ with access to and copies of relevant CIA records; (3) require a written analysis by the CIA of CIA intelligence reports on Andrade's involvement in the Zona Rosa attack and why previous intelligence indicating that he was involved is no longer applicable; (4) require the FBI be allowed access to Andrade; and (5) require that no immunity be granted for Andrade. Murtagh also stated that DOJ was not inclined to agree to parole and that the CIA would probably have to bring Andrade into the country under PL-110 (50 U.S.C. Section 403(h)), a law which gives the CIA authority to grant 100 paroles per year to individuals who have made a significant contribution to the intelligence efforts of the United States or whose parole is in the interest of national security.
Murtagh recalled that Chidester said he also believed that Andrade could be useful in testifying against Rivas. Murtagh said, however, that Andrade's testimony would not be helpful because Andrade could only place Rivas at a cafe in another area of San Salvador prior to the shooting. Chidester also proposed having Andrade provide information against Martinez, the individual who Andrade alleged in his debriefings was the true mastermind of the killings. Murtagh said he never seriously considered a prosecution of Martinez, because DOJ had no evidence against Martinez and did not believe that the self-serving statements of Andrade about Martinez would be useful in a United States trial. (See section II(J)(2), above, for a discussion of Martinez.)
(c) Interagency Meeting on October 5, 1989
On October 5, 1989, an interagency meeting among DOJ, CIA, and DOS was held at DOS to discuss the parole request. Present at this meeting from DOJ were Murtagh, Biehl, DePue, FBI Supervisory Special Agent [REDACTED] and Special Agent [REDACTED]; from DOS were Chidester, El Salvador Desk Officer Pat Butenis, and L/LEI Attorney Andre Surena; and from the CIA were CIA OGC attorney [REDACTED], CIA attorney [REDACTED], and two CIA Central American Task Force employees.
Murtagh reported to us that the point of the meeting was to try to reach an agreement reconciling the CIA's desire to debrief Andrade for information unrelated to Zona Rosa and DOJ's desire not to complicate the prosecution of Rivas or any potential DOJ case against Andrade, if one could be developed.
According to a Memorandum for the Record prepared by [REDACTED] shortly after the meeting, Chidester said that Andrade was prepared to provide intelligence information to the CIA once his family was brought to the United States and provided financial assistance. DOJ agreed not to object to the resettlement of Andrade's family into the United States and its financial support. [As a result of the interagency meeting, on October 6, 1989, the Embassy requested that three of Andrade's children be paroled into the United States. His wife and two other children were already lawful permanent residents. The INS approved the request, and the three children entered the United States on October 25, 1989. ] DOJ also agreed that Andrade could be debriefed on intelligence matters not related to Zona Rosa. However, Murtagh and the DOJ attorneys opposed giving any money to Andrade directly. They asked that any money be given to his wife and children so that it did not taint Andrade as a witness in any potential prosecution of other Zona Rosa defendants.
At the meeting, Murtagh took the position that Andrade was involved in the killings and that parole was not appropriate for him. Murtagh stated that the CIA had previously identified Andrade as responsible for the Zona Rosa attack, so it must convince DOJ that this view had been changed by the collection of new evidence if DOJ was going to agree to Andrade's parole. According to [REDACTED] memorandum, Murtagh stated: "If you (CIA) want Justice to concur in a recommendation for parole, you have to explain to us why you don't think he is a murderer." Murtagh also questioned whether it was the CIA's position that Andrade was not involved in the Zona Rosa killings. The CIA attorneys replied that the CIA had not yet adopted a position on Andrade's guilt or innocence but had only collected and reported information on the issue.
Murtagh stated to the participants that there were no present DOJ plans either to prosecute Andrade or to use him as a witness, but he emphasized that he had not yet received access to CIA files and he was not declining prosecution. The CIA argued that Murtagh had been given access in September but had not reviewed the documents yet.
Murtagh said that the United States had information implicating Andrade in the attack, although it did not have admissible evidence sufficient to prosecute him. But Murtagh said he believed that Andrade was involved in the murders and should not be paroled into the United States
Murtagh emphasized in his interviews with OIG investigators that an agreement was reached during this meeting that any effort to parole Andrade into the United States should be coordinated among the various agencies represented at the interagency meeting. Murtagh believed that, in the event of another request to parole Andrade, a formal document would be submitted to all of the interested agencies involved and a subsequent interagency meeting would be held to discuss the request before anything happened. Murtagh said there was no contention about this point.
Other DOJ attorneys also remember Murtagh making clear that, although there was insufficient evidence to indict Andrade, the intelligence showed that he was probably involved in the murders. Biehl remembered stating at the meeting that if Congress or the press found out that Andrade was granted a parole into the United States, they "would have a field day." Biehl recalled that there was a "solid understanding" that nothing would happen on the parole unless it was presented to the top levels of the various agencies for any objections. Biehl stated that DOJ could never have agreed to a parole without approval at much higher levels of DOJ, at least at the level of Deputy Assistant Attorney General Mark Richard.
DOJ Attorney John DePue similarly recalled stating at the meeting that DOJ was opposed to the parole of Andrade. DePue suggested that the CIA should use PL-110 to bring Andrade into the country if the CIA wanted him here. DePue made this suggestion because he believed that if the CIA wanted someone brought into the country who had provided intelligence information, it should put the "facts on the table," and Andrade's parole should be vetted by the highest officers of the government. DePue said that his suggestion was roundly rejected at the meeting. DePue believed that the CIA did not think it could satisfy the burden under the statute of showing that it was "in the interest of national security or essential to the furtherance of the national intelligence mission" to bring Andrade to the United States.
An FBI report of the meeting confirms that Murtagh and Biehl informed the CIA that DOJ saw no reason for Andrade's parole. According to the FBI report, Murtagh listed various conditions before DOJ would consider paroling Andrade, such as a written proposal from the CIA, access to all CIA records on the matter, an inventory list of documents that might present problems because they were classified and possibly be discoverable by the defendant in a criminal matter, FBI access to the polygraph of Andrade, and a CIA written analysis of intelligence reports concerning Andrade's involvement in the murders. According to the FBI report, the CIA had not yet taken a position on whether Andrade was involved in the murders, and Murtagh said that it would have to take a position on Andrade's involvement.
According to CIA attorney [REDACTED] Memorandum for the Record, DOS was also pessimistic that it would agree to parole Andrade into the United States. Andre Surena said that DOS could not argue convincingly for parole but that its position might change if Andrade subsequently provided a great deal of valuable intelligence, so long as no credible evidence establishing his involvement was uncovered, and if Andrade provided credible information linking others to crimes prosecutable in the United States or El Salvador.
[REDACTED] Memorandum for the Record also confirmed that the "meeting concluded with a general agreement that any proposal for the parole of Andrade into the U.S. would require further interagency discussion." In addition, a cable from CIA Headquarters to the El Salvador Station on October 6, 1989, described the meeting by stating:
At this time, no [U.S. government] element appears to be interested in bringing Andrade into the States. Neither the Department of State nor the Department of Justice sees any real advantages from their perspectives to bringing Andrade into the States. Furthermore, both agencies indicated they would want to be assured Andrade was not involved in Zona Rosa before bringing him into the States. At this time, it appears to be premature for [the CIA] to decide whether or not to bring Andrade to the States. It appears that it should not consider this possibility until we see how we proceed with the first step (i.e. relocation of family in exchange for debriefing.)
(d) October 24, 1989, Meeting Between DOJ and DOS
Another meeting was held on October 24, 1989, at DOS concerning Andrade's parole. The only record of this meeting are the handwritten notes taken by DOS attorney Robin Frank. According to her notes, Murtagh, Biehl, Depue, FBI Special Agent [REDACTED], and another AUSA were present, as were Frank and Chidester from DOS. Chidester reported that Andrade had received immunity from prosecution in El Salvador, that Andrade had been told that he would not get immunity from prosecution in the United States, and that Andrade was to be debriefed in El Salvador. Chidester proposed having Andrade come to the United States or a third country. Chidester also said that he had talked to INS about this subject, and INS was willing to parole Andrade.
Frank recalled that Murtagh said he was making an effort to resolve the unanswered questions about Andrade. Her notes indicate that he was intending to review the CIA documents within a few weeks. Chidester reported that the Salvadoran Special Investigative Unit (SIU) had tapes of a polygraph administered to Andrade. FBI Agent [REDACTED] stated that he wanted the tapes, and Chidester agreed to provide them. Frank recalled that the tone of this meeting was that DOJ was very nervous about the parole of Andrade and believed that there was more work to be done by DOJ to resolve the questions about Andrade. Frank stated that the answer was still quite clearly "no" as to whether Andrade could be paroled into the United States.
(e) Conclusions about Interagency Meetings
Based on our interviews and review of the written record, we found that there was a firm and clear understanding reached at the interagency meetings that Andrade's family would be allowed into the United States and receive financial assistance, that Andrade could be debriefed on intelligence matters unrelated to Zona Rosa, but that parole for Andrade was not appropriate absent further interagency discussions. The door was left open for further consultations about the parole of Andrade, after DOJ's review of the CIA's files. But it was clear that further information would have to come to light to change DOJ's opposition to Andrade's parole. Before any parole was approved, it would have to be the subject of a further interagency meeting, and the parole approval would have to be cleared at higher levels of DOJ than the prosecutors who were at the interagency meetings.
10. Response to the Washington Interagency Meetings
According to OIG investigators' interviews, the United States Embassy in El Salvador was not fully informed of the agreements reached in the interagency meetings in Washington. Ambassador Walker and Deputy Chief of Mission Dieterick did not remember Chidester ever reporting that DOJ was opposed to the parole or that DOJ wanted time to review the CIA files in order to make a decision on Andrade's culpability. Walker and Dieterick also did not remember Chidester ever informing them that further interagency meetings would have to be convened to approve Andrade's parole. The Embassy's Consul General, Nicholas Ricciuti, similarly did not recall ever learning of any opposition to the parole by DOJ or DOS or the need for further interagency meetings on any parole request. There is also no record that the Department of State ever sent a cable to the Embassy summarizing the interagency agreement.
Chidester told OIG investigators that he had no memory of any interagency meeting in Washington that he attended concerning Andrade's parole. During his interview with OIG investigators, Chidester was shown the Memorandum for the Record written by CIA attorney [REDACTED] describing the October 5, 1989, interagency meeting in Washington. Chidester said this memo did not refresh his recollection about the meeting, but if the memo said he was present, he must have been. However, Chidester still did not remember any agreement that, before Andrade was paroled, there would have to be another interagency meeting. He also did not recall anyone from DOJ objecting to the parole of Andrade. He did not even recall being at any interagency meeting with AUSA Murtagh.
Chidester said he thought everyone was in agreement that the United States had taken all steps necessary to determine Andrade's involvement and there was insufficient evidence to prosecute him. Chidester said he never understood that DOJ was looking to further investigate Andrade's involvement. After reading the [REDACTED] Memorandum, however, Chidester stated that it indicated to him that if Andrade provided substantial intelligence, he could be granted parole into the United States. Chidester said that Andrade did, in fact, provide significant intelligence about the FMLN, and the Salvadoran jails "were filling up with people" based on Andrade's information. As to the last sentence in the [REDACTED] memorandum, which stated that Andrade's parole would require further interagency meetings, Chidester said he did not recall this as a condition for parole.
Other Embassy officials also pointed out that shortly after the interagency meetings, other events in El Salvador became more pressing. In early November 1989, the Salvadoran guerrillas mounted a massive offensive in San Salvador. In Ambassador Walker's words, San Salvador was "blowing up." United States citizens were captured in El Salvador and the Embassy was under constant attack. It was not until the end of 1989 that the guerrilla offensive subsided.
11. DOJ's Assessment of the Case Against Andrade
In November and December 1989, DOJ Attorneys Murtagh and Biehl reviewed the intelligence information in the CIA's files. From their review, they concluded that Andrade was not the "mastermind" or "intellectual author" of the killings, as previously alleged, but that he was involved in the attack. They also concluded that there was not sufficient admissible evidence to bring a case against him in the United States. Murtagh believed that, absent a confession by Andrade that he participated in the attack, there was insufficient evidence to prosecute him.
Murtagh stated that his review of the CIA files also indicated that there were no unexplored leads to investigate on Andrade that did not involve the CIA. Murtagh stated that, based on his experience with the CIA, he did not believe that CIA case officers would be made available to testify at trial or that they would even identify Salvadoran sources and assets for him to use in the prosecution, much less assist in obtaining their testimony. Murtagh also did not believe that Salvadoran intelligence officers would testify.
Murtagh stated that he believed that Andrade would be of little use against others as a witness. Andrade had no real information against Rivas, and Murtagh did not want to make a deal with Andrade to testify against Rivas or anyone else. While Andrade had tried to implicate Martinez as the mastermind of the attack, Murtagh did not believe there was sufficient evidence against him. Andrade's statements implicating Martinez were viewed as suspect and completely self-serving.
Murtagh said that DOJ did not attempt to toll the statute of limitations on the Zona Rosa crimes, which ran on June 19, 1990, because he did not see any legitimate way to do this. A letter rogatory to the Salvadoran government seeking evidence would have tolled the statute, but Murtagh said he knew of no evidence or documentation in the possession of the Salvadorans that would have been admissible against Andrade in a United States prosecution.
Yet, despite the conclusion that Andrade could not be prosecuted in the United States, Murtagh and other DOJ prosecutors believed that there was sufficient intelligence information implicating him in the Zona Rosa killings and that he should not be paroled into the United States, even if he could not be prosecuted in United States courts.
Murtagh said he never formally declined prosecution of Andrade, in case other evidence eventually surfaced. He reported his conclusions about the Andrade case after his review of the CIA files to the CIA Office of General Counsel, stating, according to a memorandum from a CIA Attorney, "although a U.S. prosecution of Andrade may never be possible because of the unavailability of witnesses and the potential inadmissability [sic] in U.S. court of certain evidence implicating Andrade, there is no doubt that Andrade is culpable to some degree in the Zona Rosa massacre."
12. CIA's Review of Intelligence on Andrade
The CIA undertook an independent review of its intelligence files concerning Andrade's involvement in the Zona Rosa attack. This information was the same set of materials reviewed by the DOJ attorneys. According to a memorandum from OGC Attorney [REDACTED] dated December 21, 1989, the CIA had substantial intelligence in its files linking Andrade, under his alias Mario Gonzales, to the Zona Rosa attack.
First, during Garcia's interrogation by the Salvadorans, he stated that he was introduced to Mario by Ulises and that Mario explained to Garcia the plan for establishing the upholstery shop as a cover for PRTC activities. Garcia stated that Mario was the chief of guerrilla "cells." Ulises told Garcia on June 14, 1985, that an operation to kill some Americans was being planned and that Mario and Julio were doing preliminary surveillance. As described above, Garcia confessed to participating in the Zona Rosa murders and that Mario was on the scene of the attack, directing the squad that provided security. Garcia later recanted this statement, saying that he was coerced into the admission by Salvadoran authorities and that he was not at the scene of the murders.
Second, guerrilla leader Mario Americo Duran (Duran), aka "Commandante Hugo," was captured by the Salvadoran police in August 1985. He stated that Mario Gonzales was a member of the FMLN steering committee. Duran said that Mario Gonzales devised the plan for the Zona Rosa killings without coordinating with the rest of the FMLN general command. Duran said that he met with Mario Gonzales frequently in the Zona Rosa. Duran recalled that once, when he noticed the presence of United States Marine security guards, he told Gonzales that the Marines would make a good target for an attack.
Third, when Rivas was arrested in August 1985, he said that his immediate supervisor in the PRTC was Mario and that Mario had ordered Dimas (Ulises) to undertake the Zona Rosa massacre. Rivas stated when interrogated by the Salvadorans that Mario had met with the Zona Rosa perpetrators at the Cafe Don Pedro just before the killings. Mario had spoken briefly with Dimas out of earshot of the others and then had driven away. Dimas told the group that its targets were North Americans and the details of their location. Dimas stated that Mario had given him a full description of exactly where the targets were located.
Fourth, Jose Anibal Masferrer Valladeres (Masferrer), a member of the PRTC Metropolitan Front, is reported to have stated to a National Police employee that the person who directed the Zona Rosa operation was still in San Salvador. An unidentified Salvadoran liaison speculated, without stating the reason, that the person referred to was Mario Gonzales. Masferrer also stated that Mario Gonzales had gone to Mexico after the killings. Masferrer also identified Mario as the author of an October 20, 1985, internal PRTCdocuments, under the alias "F. Frank," that used the term "intellectual author" to describe the role of Mario in the attacks.
Fifth, guerrilla Pedro Vladimir Rodriguez Guardado was captured in January 1986 at a house where numerous weapons were stored. During interrogation, he said that Ulises and Mario took weapons from the house two days before the Zona Rosa attack.
Sixth, PRTC documents captured in July 1988 stated that the PRTC Command was having difficulty with Mario Gonzales, who had a "penchant for acting individually rather than for the collective good." This suggested to the CIA report that Mario may have acted on his own authority in planning the Zona Rosa attack.
Seventh, PRTC military/political commander Axel Armando Orellana Mena (Orellana) was captured by the Salvadorans on April 11, 1989. Orellana stated that Miguel Mendoza, the acting Secretary General of the PRTC, had said that he had learned that Mario Gonzales was responsible for the planning and execution of the Zona Rosa attack. Mendoza told Orellana that in January 1986, PRTC Secretary General Roberto Roca called a meeting of the PRTC high command to discuss the Zona Rosa killings and stated that Mario Gonzales had failed to consider the consequences of the killings and did not coordinate a plan to withdraw PRTC urban commandos from the metro area after the attack. Orellana also said he was familiar with the details of the attack from a written report that he believed was written by Mario Gonzales. Orellana believed that Ulises played a major role in preparing for the attack and scouting out the site, and Mario took the basic plan and refined it. Immediately after the attack, Mario was in San Salvador evacuating PRTC urban commandos. Mario then went to Mexico for one year. Information provided by Orellana led to the capture of Andrade on May 29, 1989.
Eighth, when Andrade was arrested by the Salvadorans, he admitted that he was Mario Gonzales and that he was asked to arrange a safehouse and medical support.
On January 3, 1990, CIA Headquarters sent to the Station a cable reporting its conclusions that Andrade was implicated in the Zona Rosa attacks. The cable also reported that AUSA Murtagh believed that the CIA documents,as well as Andrade's own admissions, contained sufficient intelligence to conclude that Andrade was involved in the planning of the attack, notwithstanding his apparent passing of a polygraph examination. The cable stated:
The AUSA has concluded that, although a U.S. prosecution of Andrade may never be possible because of the unavailability of witnesses and the potential inadmissibility in U.S. court of certain evidence implicating Andrade, there is no doubt that Andrade is culpable to some degree in the Zona Rosa massacre.
The cable concluded that any future proposal by CIA to provide assistance to Andrade would be met with strong resistance from DOJ.
On January 23, 1990, another cable was sent from CIA Headquarters to the Station attempting to clarify the Headquarters position about the Station's dealings with Andrade. Headquarters stated that the January 3, 1990, cable containing the conclusions of the AUSA did not preclude the Station from providing assistance to Andrade's family. The cable stated:
Station should be aware, however, that a Headquarters review of relevant documents on the Andrade case, a review independent of the AUSA's review, indicates that Andrade, despite the results of his polygraph test, may have played a much more central role in the Zona Rosa massacre than we had previously been led to believe. In fact, the documents point to Andrade as probably having masterminded the Zona Rosa slayings of U.S. Embassy Marine guards. . . . [DOJ] could well initiate charges against him were he to travel to the U.S. and additional evidence against him became available here. If that were to happen, then information on any contacts he may have had with [CIA] officers could be ruled to be discoverable evidence. . . .
13. The Parole Request Cable in March 1990
In January 1990 Andrade was promised by the Salvadorans that if he cooperated fully in debriefings, the time he had served by the end of his debriefings would be considered the penalty for his guerrilla activities. On January 15, 1990, a Salvadoran judge authorized Andrade's release fromprison, to take effect only after Andrade was debriefed. According to Chidester, Andrade was kept in jail, for his safety, while he provided intelligence on guerrilla operations.
(a) The Request
On March 27, 1990, a cable from the United States Embassy requesting the parole of Andrade was sent to Washington. The cable was drafted at Chidester's request. It was addressed to the DOS Visa Office and DOS Office of Central American Affairs. Informational copies were sent to the CIA and the FBI. No copy was directed to the DOS Legal Adviser's Office or to the DOJ attorneys, who were participants in the interagency meetings on Andrade.
The cable began by stating that Andrade's wife and five children were residing in New Jersey and that the "Embassy Legal Officer made arrangements in the Department and with INS for Andrade at the same time as for the family members mentioned [in the previous telegrams]." There is no written record in INS files indicating that the Embassy or Chidester had made any arrangements with INS for Andrade's parole before the March 27 request. The INS employee who approved Andrade's parole did not recall any discussions about the parole at the time that the arrangements for the children were made.
The cable then described Andrade's provision of valuable information on the FMLN, including the location of the largest arms cache ever discovered in the San Salvador area. The cable stated that because of his cooperation, Andrade was in "grave danger of being murdered by his former comrades."
The cable explained that Andrade, also know as Mario Gonzales, was believed to have been the intellectual author of the Zona Rosa murders but that, "under intense and extensive interrogation by Salvadoran authorities, an Embassy officer, and an FBI agent, Andrade has denied participation in the Zona Rosa crime." It also stated that Andrade had passed two polygraphs and that the government of El Salvador had dropped all charges against him in connection with the Zona Rosa killings. The cable stated: "Post does not believe that Andrade was involved in the Zona Rosa crimes and supports the [Government of El Salvador's] decision to drop charges against him. Embassy Legal Officer Chidester has requested that he be named the 'Responsible Officer' in this case."
The cable concluded:
Because Andrade is in clear and immediate danger of losing his life, and because he has provided valuable information to the United States, Post recommends him for humanitarian parole. Due to his past associations, Andrade is not eligible for Priority One Refugee Status. On humanitarian grounds alone, it is consistent with U.S. practice in other cases to grant parole to an individual who is threatened by Marxist terrorists. This is especially the case when he has provided information useful to the U.S. In addition, the active collaboration of a former insurgent leader of Andrade's stature helps to advance U.S. goals in El Salvador, and we should be willing to take some measures to protect such persons. It is in our national interest to provide humanitarian parole as part of our effort to save Andrade's life.
The cable did not mention anything about the interagency agreement or even the existence of a criminal investigation by DOJ into Andrade's involvement.
(b) Responsibility for the Parole Request
In the OIG interviews, there was much discussion about who was responsible for this parole request. When Chidester was first questioned by DOS in July 1990 about the parole request, he stated that it was CIA's responsibility. In response to a later request from DOS asking who was responsible for the parole, Chidester wrote that he asked the Embassy's Consular Section to initiate the parole request. A July 16, 1990, cable from the Station to CIA Headquarters stated that the Station had played no role in influencing the Embassy in its "decision to authorize Andrade's humanitarian parole." The cable stated:
From the beginning we have made it clear to Embassy Legal Officer Richard Chidester that we neither objected to nor were pushing for Andrade's parole into the U.S. . . . Throughout the Andrade debriefing ordeal, we pointed out to Chidester we did not really care whether Andrade ended up in the U.S. or elsewhere. When Chidester informed us he had obtained approval for the parole, he told us all concerned U.S. agencies were on board.
In his interviews with OIG investigators, Chidester stated that the effort to parole Andrade was a cooperative effort with the CIA Station and that hewas "extending a service to help [the Station] get information they wanted [from Andrade]." Chidester said that the idea of bringing Andrade into the United States was not the Embassy's original idea. Rather, he said he was asked by the Station, "Can you find a way to bring him to the U.S.?"
Chidester emphasized that there was always agreement on the Embassy team, including the Station, that Andrade should be paroled into the United States in return for his intelligence information. Chidester stated that sometime shortly before he initiated the parole request again in March 1990, the CIA Station Chief advocated pushing forward with the request for Andrade's parole. Chidester said "to say they [the Station] would not have been in agreement on this is beyond my comprehension." Chidester said he did not recall the Station or the Station Chief ever changing their views on Andrade's parole. Nor did he recall the Station Chief ever reporting that CIA Headquarters had sent a cable concluding that Andrade was culpable for the murders. Chidester stated that the Station fully supported the parole request, even buying Andrade's plane tickets to leave. Chidester said that he did not coordinate with anyone from CIA Headquarters about the parole, but thought that the Station would have done that.
The Embassy's Deputy Chief of Mission, William "Jeff" Dieterick, also believed that the CIA asked the Embassy for help in getting Andrade paroled into the United States. Dieterick stated that he would be very surprised to hear that the Station Chief and Deputy Chief had stated that the CIA did not seek the parole. Dieterick believed at the time that the CIA was behind the effort to get Andrade paroled, and he said he could not imagine what other reasons Chidester would have had for pushing it. Dieterick did not recall if he had discussed the parole directly with the CIA Station Chief, but Dieterick thought that he might have because they were fairly close. Ambassador Walker also agreed that the parole request was fully coordinated with the Station. He said the CIA never changed its position that Andrade should be paroled into the United States, and he was quite sure the Station was consulted about the parole request.
The Embassy's Counsul General, Nicholas Riccuiti, told OIG investigators that after recently speaking with Chidester and Ambassador Walker, he now recalls that the CIA had been the original impetus behind the parole. Riccuiti stated that he is convinced that the Station cleared the parole request before it went out, despite the fact that they do not appear on the cable as having done so. Riccuiti explained that there was room only for three clearance lines on the cable in the computer system at that time, so that all who cleared on a document did not always show up on the document itself. Riccuiti stated that it was the policy for his junior officers to clear such matters with the Station. Riccuiti also stated that the term "Secret Noforn" on the cable was not a term used on Embassy cables, but rather CIA language that must have been suggested by the CIA.
DOS employee B. Glen Griffin was a junior officer in the consulate section of the Embassy. He prepared the parole request. He told OIG investigators that it was his first such parole request and that Chidester wrote most of it. Griffin recalled that later practice was to have a parole request cleared by the Chief of Station, but this was his first preparation of a parole request, and in this case he is not sure there was a CIA clearance. He cannot recall whether he walked this request through the approval process. He believes that Chidester handled it. He said that Chidester told him that he had "worked it all out with Post."
By contrast, the CIA Station Chief was interviewed three times during this review, and he vacillated over the course of the interviews about theStation's involvement in the parole. During the first interview, he said that the Embassy sought a parole for Andrade to the United States but that he recommended against it. He said that he had not seen the March 1990 parole request cable when it was sent and that he first learned about it in July 1990 when Andrade was in the United States.
During his second interview, with all OIGs present, the CIA Station Chief stated that the Station was "probably" in favor of getting Andrade out of El Salvador initially. But he said that once he received the intelligence information from CIA Headquarters in January 1990 about Andrade's involvement in the Zona Rosa murders, he did not support the parole request for Andrade. He saw the Embassy's March 1990 parole request cable shortly after it was sent and was upset that he was not consulted, not that it had gone out. He did not inform CIA Headquarters about the parole request, however.
During his third interview, after Chidester and Walker had said that the CIA concurred in Andrade's parole request, the CIA Station Chief stated that he initially favored Chidester clarifying Andrade's situation so that intelligence could be gained from him. But after the Station received the January 1990 cable from CIA Headquarters, he no longer thought that parole was a possibility. He stated that he informed the Embassy of CIA Headquarters' findings that Andrade was probably involved in the Zona Rosa killings but did not tell the Embassy that the CIA opposed any parole because he did not believe that the January cable expressed such opposition. He said that the parole was not his problem, and that he was surprised when it was granted. He stated, however, that he thought he should have notified CIA headquarters of the parole request.
The Deputy Chief of Station (DCS) told OIG investigators that he believed that Chidester first brought up the possibility of parole for Andrade. The DCS stated that he would have respected DOJ's position on parole if he had been aware of it and that the only way the Station would have supported the parole was if it was under the impression that all agencies involved were satisfied and concurred that parole was appropriate. The DCS also recalled discussing the possibility of Andrade's going to a third country because the United States was not going to take him.
The DCS could not recall the exact circumstances of Andrade's parole request, but he believed that at some point Chidester told him that the parolewas about to be approved. The DCS said that Chidester knew the facts best and had been dealing with all of the agencies involved. The DCS stated that the CIA did not oppose the parole, but certainly did not push for it. The DCS did not recall seeing the March 1990 cable requesting parole for Andrade.
(c) Addressees on the Parole Request
Unlike previous cables addressed specifically to DOS attorneys Andre Surena or Robin Frank, or containing the specific message "Pass to AUSA Murtagh" or "Pass to D.C. U.S. Attorney's Office," the March 1990 parole request cable did not include directions to send it to Frank, Murtagh, or DOJ. Walker and Chidester reported to OIG investigators that the parole request was sent through the normal channels for requests for visas or parole: to the DOS Visa office and to the Central American Affairs Desk. Moreover, they noted that an information copy was sent to the FBI, a part of DOJ. In addition, a copy was sent to CIA Headquarters.
Chidester said that specific names of those involved in Andrade's case--such as Frank, Surena, or the DOJ attorneys--were not included on the cable because the Embassy was following what it thought was the normal process for a parole request. Chidester stated that coordination for any required interagency meetings should have occurred in Washington, through the DOS desk officer, in response to the parole request cable. Chidester said that he was not trying to sneak the parole request through the system or attempting to do anything underhanded. Walker agreed, stating that before DOS gave an answer on the parole request, it could have and should have coordinated with the appropriate agencies, instead of relying on the Embassy in El Salvador to determine who should be involved.
It is clear, however, that when the parole request was sent to Washington, it did not elicit the appropriate treatment. The parole request cable was never received by DOJ prosecutors, who would have strongly objected to the request. No one from DOS, the CIA, or the FBI ever notified the prosecutors of the proposed request. Murtagh, Biehl, and DePue told OIG investigators that they did not see the cable or learn about Andrade's parole until after he had entered the country. We leave it to the DOS and CIA OIGS to determine why no one from their agencies noticed the cable or notified the interagency participants of the parole request. We will examine the FBI's actions upon receipt of the cable and its failure to forward the cable to the prosecutors.
14. The FBI's Handling of the March 1990 Parole Request Cable
FBI Headquarters received a copy of the Embassy's March 27, 1990 parole request cable. On April 3, 1990, Headquarters forwarded the parole request in teletype form without comment to the FBI's WMFO, the field office responsible for the Zona Rosa case, and to the FBI's Legat in Mexico City, the office that was assisting with the Zona Rosa investigation in El Salvador.
(a) FBI Headquarters' Handling of the Cable
Our review found that FBI Headquarters personnel who received the parole request cable never notified DOJ prosecutors about its contents, as they should have done.
When the Embassy's March 27 parole request cable was received at FBI Headquarters, it was forwarded to the International Terrorism - Global Unit, the unit responsible for the Zona Rosa case. At the time, incoming cables were normally reviewed by the Unit Chief and passed to the Supervisory Special Agent (SSA) responsible for the particular matter. The SSA would normally give instructions to a research analyst on how to proceed with each cable.
In this case, it does not appear that the Unit Chief at the time, Robert Blitzer, ever saw the parole request cable. He did not recall seeing it when it came in, his initials do not appear on the cable, which is his normal practice when he reviews one, and he did not write the name of the SSA to whom the matter was assigned on the document, which is also his normal practice.
The cable was forwarded, however, to SSA [REDACTED], the SSA in the Unit who was responsible for the Zona Rosa case. He had attended an interagency meeting in the fall of 1989 concerning Andrade's parole. He gave the cable to research analyst [REDACTED], with instructions to forward copies of the cable in teletype form to WMFO and the Mexico City Legat. No request for action was included on the teletypes. [REDACTED] sent the teletypes, as requested. The teletypes repeated the cable's contents verbatim and did not add any instructions or comments for WMFO or the Mexico City Legat. [REDACTED] name appeared on the teletype as the originator.
Blitzer reported that the role of the field offices was primarily to investigate and collect evidence of a crime. He said that it was incumbent upon FBI Headquarters--specifically the unit responsible for a case--to handle interagency communications and notifications on such a matter like this.
Blitzer also stated that the Zona Rosa case was considered to be a "front burner" case in his unit and anything that came in on the case should have received close scrutiny. He said that, upon receipt of a parole request in such a high-profile case, the Unit Chief should have assigned the request to the SSA for review. The SSA and a research analyst would have reviewed the information available to the FBI concerning the person seeking a parole and would have made a recommendation to the Unit Chief on whether to concur with or oppose the parole request. The Unit Chief would have made his own assessment, and given the sensitivity of the case, probably consulted with higher-level FBI officials. Blitzer also stated that the DOJ prosecutors should have been informed of the parole request and been given a chance to object.
None of these things happened with the Andrade parole request. Blitzer did not see the parole request, although it was sent to the appropriate SSA. The SSA and the research analyst stated, however, that there was no request for FBI action by the Embassy contained in the parole request cable, and they viewed the cable as informational only. [REDACTED] said that he thought that this was not an actual request for parole authorization, and that DOS would be setting up interagency meetings, as occurred with in the fall of 1989 when the issue of parole was first raised, before parole was authorized. He thought that the FBI would have a chance to make its objections to parole during such meetings. But no meetings were convened, and FBI Headquarters never notified DOJ prosecutors about the cable.
(b) Mexico City Legat's Handling of the Cable
When the cable was received by the Mexico City Legat, it was read and initialed by Special Agent [REDACTED], who had interviewed Andrade in June 1989. It was also read and initialed by the Legat, Joseph Gannon.
As noted above, [REDACTED] had interviewed Andrade in June 1989 when the Panama City Legat who worked on the Zona Rosa case was unavailable. [REDACTED] was not the case agent assigned to the Zona Rosa murders. Rather, he performed tasks at the request of FBI Headquarters or WMFO, the office responsible for the Zona Rosa case. [REDACTED] stated that a Legat is responsible for responding to requests from FBI field offices in the United States for investigative help. [REDACTED] said he was never personally responsible for the Zona Rosa case. Although he had been copied for informational purposes on previous cables outlining the interagency meetings about Andrade, he was never asked to do anything about those informational cables.
[REDACTED] said he did not recall seeing the March 1990 parole request cable. He stated that, if he had seen it, he would not have viewed it as something on which he needed to act. [REDACTED] said he would have assumed that the parole had been discussed at a higher level in Washington. He also said the case agent on the Zona Rosa case in WMFO should have taken any necessary action concerning the cable.
[REDACTED] supervisor, Gannon, did not recall seeing the cable. He stated that he probably forwarded the cable to [REDACTED] for his information, but that he did not view the cable as requiring any action by the Mexico City FBI office. He said that if any discussions or notifications needed to occur, that should have happened in Washington.
(c) WMFO's Handling of the Cable
The parole request teletype was also received at the FBI's WMFO and read and initialed by Acting Supervisor [REDACTED] and Special Agent [REDACTED]. The copy of the teletype in WMFO's files contains the notation: "Al: Let's brief Murtagh on this. F."
[REDACTED] was the FBI case agent responsible for the Zona Rosa matter when the Andrade interagency meetings were held in September and October 1989. [REDACTED] also participated in the grand jury investigation and indictment of Rivas. In early April 1990, [REDACTED] became the Acting Supervisor of the WMFO Counterterrorism Squad, and the Zona Rosa case was assigned to Special Agent [REDACTED].
At the request of OIG investigators, [REDACTED], now stationed in Cairo, Egypt, reviewed the parole request teletype. [REDACTED] said he recalled seeing this teletype and thinking that something about which he was not aware must have occurred at a higher level in DOJ. He confirmed that he had written the note on the bottom of the teletype reading "Al: Let's brief Murtagh on this. F." [REDACTED] said that this was a note to [REDACTED], the case agent assigned to the matter when the teletype was received. [REDACTED] said he recognized that Murtagh should have been informed of the teletype, if he did not already know, and through the note he wrote on the teletype he was asking [REDACTED], the case agent, to do it. [REDACTED] said he was transferred to FBI Headquarters two weeks later - on April 16. He had no further contact with the Zona Rosa case and did not check with [REDACTED] to determine whether he had actually briefed AUSA Murtagh about the parole request.
We also interviewed [REDACTED] about his recollection of the parole request teletype and showed him a copy of the teletype. [REDACTED] initials appear on the teletype next to his name. He said he remembered being assigned to the Zona Rosa case but he had no recollection whatsoever of the teletype, even after reviewing it. He did not remember if he briefed Murtagh about it. We found no evidence in FBI's file that he did.
(d) Conclusions Regarding the FBI's Handling of the Parole Request Cable
No DOJ prosecutor learned about the parole request cable at the time it was sent. We leave to the other OIGs to provide a discussion of what happened in their agencies and an explanation for why the DOJ prosecutors were not apprised, pursuant to the interagency agreement, of the parole request. But we find that the FBI's failure to brief the prosecutors about the parole request was a serious omission. Had this been done, the prosecutors would have strenuously objected to Andrade's parole, and we have no doubt that it would not have been granted.
FBI Headquarters had the primary responsibility for notifying DOJ prosecutors of the parole request and for marshalling any FBI objection to the request. Headquarters failed to do either and must be faulted for this lapse.
We do not think that the Mexico City Legat can be faulted for not passing on the information in the parole request. The Mexico City Legat office was responsible for handling investigative tasks and also for "pinch hitting" on the Zona Rosa case for the Panama City Legat. The Mexico City agents reasonably believed that the parole request teletype was an informational document forwarded to them, like other documents, to keep them abreast of current developments. But no request for action was made to them, and they should not be expected to pass this information back to Washington prosecutors.
While Headquarters, and not WMFO, was primarily responsible for the handling of the parole request, WMFO did realize the significance of the request and should also be faulted for not alerting the DOJ prosecutors. Special Agent [REDACTED] properly recognized the importance of the teletype and recognized that AUSA Murtagh should be briefed about it. That was never done, despite specific instructions to the case agent to do so. Understanding how this breakdown occurred is difficult, if not impossible, because of the passage of time and the inability of the agents to recollect precisely events that took place many years before. Whatever the reason, it was a failing for WMFO not to pass on the information about the parole request to Murtagh.
The failings of FBI Headquarters and WMFO are mitigated, however, by the context of the parole request. The parole request did not contain a request for FBI action as is normally the case. It was not sent directly to Murtagh, asit should have been and as other cables about the Zona Rosa case had been. Because the Embassy sent what appeared to be a routine request for humanitarian parole without addressing it directly to the necessary parties, the cable could have been overlooked or mishandled, which is what happened. Moreover, one would have expected DOS, the agency requesting the parole, to coordinate with the essential parties--here the DOJ prosecutors--on the request.
This does not excuse the FBI. But it is apparent that a number of omissions occurred across several agencies, only one of which was the FBI's failure to apprise the prosecutors about the parole.