Sunday, May 2, 2010

Garzon on Trial

Garzon on Trial


By Geoff Pingree & Sebastiaan Faber

May 17, 2010 edition of The Nation.

April 29, 2010


When Spain's Supreme Court voted on March 25 to proceed

with a case against investigative magistrate Baltasar

Garzon for "judicial prevarication," or knowingly

overstepping his judicial authority, it set the stage

for a high-stakes battle in which the heirs of a

violently repressive political party may well unseat a

democratic judge for daring to take seriously the

complaints of that same party's victims.


Garzon, 54, who sits on Spain's Criminal Court, has

earned international fame for his groundbreaking, high-

profile criminal cases against prominent figures across

the political spectrum--from the late Chilean dictator

Augusto Pinochet and Osama bin Laden to Basque

terrorists and Bush administration officials. But the

star judge now finds himself on the other side of the

bench, facing a possible twenty-year suspension that in

effect would end his career.


Brought against Garzon by extreme right-wing splinter

groups, the case rests on arcane and nearly inscrutable

legal minutiae, such as the lawfulness of indicting the

dead or whether kidnappings from seventy years ago can

be considered ongoing crimes, immune to a statute of

limitations. In Spain's judicial system, investigative

magistrates enjoy extraordinary autonomy, and they

often function as both prosecutors and judges, choosing

and building their own cases and assuming

responsibility for everything from fact-gathering and

interrogation to preventive detention. Taking full

advantage of this autonomy in pursuing Spain's doctrine

of universal jurisdiction--which stipulates that the

nation's domestic courts may try foreigners for

international crimes of unusual gravity regardless of

where they were committed--Garzon has, in the past

dozen years, further expanded the investigative

magistrate's reach. In so doing he has revolutionized

international law by redefining the terms of legal

accountability for world leaders. His pioneering

efforts have ensured, for example, that Donald Rumsfeld

and Henry Kissinger have to think twice before boarding

a plane to Europe.


But Garzon's boldness has also led Supreme Court

Justice Luciano Varela to allege that the "superjudge,"

as he is often dubbed in the media, has overplayed his

hand. This case asserts that Garzon exceeded his legal

authority when, in October 2008, he began to

investigate as crimes against humanity the torture,

forced disappearance and murder of some 114,000 Spanish

civilians by supporters of Gen. Francisco Franco during

the country's civil war (1936-39) and the early years

of Franco's dictatorship. The 1977 amnesty law that

laid the foundation for Spain's peaceful transition to

democracy after the general's death in 1975 had long

prevented legal prosecution of such acts. But Garzon,

who focused on the deeds of Franco and thirty-four

members of the dictator's government, claimed that

crimes against humanity were not covered by the

country's "pact of forgetting."


Garzon began his inquiry in response to the pleas and

legal briefs made by family members of Franco's

victims, many of whose bodies still lie in unmarked

graves throughout the country. In so doing he initiated

an intricate legal game that is ultimately a proxy for

the longstanding and divisive ideological battle over

Spain's recent past. The charges against Garzón were

first brought by Manos Limpias (Clean Hands), an

ultraconservative public-servant trade union created in

1995, largely to pose legal obstructions to

investigations of Franco-era crimes. Another right-wing

organization, the newly created Asociacion Libertad e

Identidad, soon became the second plaintiff. Any doubts

about the case's political meaning, regardless of its

legal complexity, were erased when the original

plaintiffs were joined by the Falange Espao±ola,

Franco's own Fascist (and the dictatorship's only

legal) party, which in the 1930s and '40s was

responsible for much of the killing denounced by

Franco's victims.


Garzon is usually assigned a leftist role within

Spain's internal disputes, but he has routinely

irritated people of all political stripes. He is a

postideological idealist, a legal crusader who in his

own country tirelessly pursues corrupt socialists and

conservatives alike and, beyond his national borders,

defends Muslims tortured at Guantanamo while also

confronting Al Qaeda.


It is no surprise that Spanish and international

conservatives have displayed a visceral contempt toward

Garzon, but the left, too, has tried to thwart his

brand of judicial activism--especially when it

threatens to embarrass those in power. Socialist Prime

Minister Jose Luis Rodriguez Zapatero has resisted

Garzon's efforts to try former Bush officials. The

Obama administration, which has resisted similar

efforts, seems to prefer forgetting past American

misdeeds to opening politically inconvenient old

wounds. Indeed, while NGOs such as Human Rights Watch

and Amnesty International, and global judicial leaders

ranging from Carla Del Ponte to Juan Guzman Tapia, have

come out in strong support of Garzon--as did tens of

thousands of Spaniards in mass demonstrations on April

24--the US government has kept notably silent.


Whether the charge against Garzon will hold up remains

to be seen. In a public letter to the Spanish attorney

general, the American Bar Association suggested that

"amnesties for crimes against humanity are inconsistent

with a State's obligations to protect human rights,

including the right of access to justice," and

supported Garzón's case against the Francoists. Indeed,

even if Garzón did exceed his jurisdiction in opening

an investigation on behalf of Franco's victims, the

Supreme Court's decision to prosecute him rather than

simply strike down his decisions is unsettling and

reveals the rot in Spain's judicial system. Because the

country chose amnesty over accountability, Franco's

institutions were left largely intact, and the courts

were never fully cleansed. Several of the judges

handling the charges against Garzón are in fact old

enough to have sworn loyalty to the dictator.


Doubts about the Supreme Court's impartial handling of

Garzon's case reached a new level on April 21, when

Justice Varela, noting that the plaintiffs' briefs

against Garzon included confusions of judgment and fact

and unwarranted references to Garzon's personal life,

did not dismiss the charges but instead sent the briefs

back to the plaintiffs along with detailed instructions

for editorial cleanup. Varela's stunning departure from

judicial precedent led some legal experts to suspect

that the Supreme Court, perhaps to avoid further

international embarrassment, might be maneuvering to

remove the Falange Española from the trial altogether--

a suspicion seemingly confirmed two days later when

Varela decided to expel the Falange as a plaintiff. On

April 28 Varela announced that he is considering a

request for his recusal from the case.


Regardless, for the time being, Garzon is in limbo, his

career in jeopardy, his future in doubt. But whether or

not he practices law again, the outcome of his case--

the very existence of which cautions any judge who

would consider investigating the Franco years--will

undoubtedly, and profoundly, affect those who have

sought reparation in Spain. It will resonate far beyond

Spain's borders as well, touching the lives of many

more seeking justice around the world, for it bears

directly on a fundamental moral dilemma whose

resolution seems increasingly uncertain as the twenty-

first century unfolds: to what extent can international

treaties on human rights--not to mention broad global

agreement about the importance of investigating crimes

against humanity--be taken seriously?


Thirty-five years dead, with an already impressive

array of victims, perhaps Franco isn't finished yet.


Geoff Pingree is a writer, photographer, filmmaker and

professor of cinema studies at Oberlin College.


Sebastiaan Faber is a professor of Hispanic studies at

Oberlin College.


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