Baltasar Garzon, the Spanish judge who ordered the 1998 arrest and extradition (from London) of former Chilean dictator Augusto Pinochet, himself faces trial, beginning January 17, on “corruption” charges. Recent Wikileaks cables reveal the pressure the US State Department has placed on Spanish authorities to silence Garzon.
Working with One of Pinochet’s Victims
Owing to the four years I worked with one of his torture victims in my Seattle practice, the arrest of Augusto Pinochet in London in 1998 was a profoundly moving and personal event. The Spanish extradition order issued by Judge Baltasar Garzon heralded in a new era in international justice. Primary to 1998, deposed dictators like Batista, the Shah of Iran, and Fernando Marcos could look forward to a luxurious and secure retirement, thanks to the American military and intelligence sponsors who brought them to power. The US refuses to recognize International Criminal Court (ICC) jurisdiction over war crimes committed by Americans or foreign dictators they support. Although they have no problem facilitating the transport of political enemies to the Hague, for example Serbian president Slobodan Milosevic (who many believe was innocent), no American will ever stand trial at the ICC for crimes against humanity.
Prior to the 1973 CIA coup that overturned Chile’s democratically elected government (and brought Pinochet to power), Father X taught literature at a Catholic university in Santiago. Except for being antifascist, Father X was totally apolitical. I suspect Pinochet’s military regime arrested and imprisoned him more to set an example than to eliminate one of their adversaries, In one important respect, all intellectuals are enemies in a totalitarian regime. The desire to be well-informed and engage in critical thinking can be very dangerous in a regime that demands total conformity.
Destroying a Man Psychologically
The only scars Father X ever showed me were on his forearms. On both arms the scar tissue was full thickness, indicating the muscle had been cut to the bone. The scars ran from the decubitus (inner elbow) to his wrist. The impact of the psychological pain his captors inflicted was far more damaging. Father X was arrested along with all his fellow priests from his university. Then he was forced to listen as, one by one, they were tortured and killed. His jailers threatened him on a daily basis, “Tomorrow we’re coming to kill you, Father.” To the best of his knowledge, all the other priests were murdered. Mysteriously, one year after his arrest, he was released. Escaping into Argentina, after four years he was granted refugee status in the US.
Sentenced to Life in the US
Though technically he had his “freedom” in the US and was safe from overt political persecution, Father X was deprived of both his livelihood and the Chilean culture that had been the fabric of his life. Father X had always viewed American culture as shallow and materialistic. In his mind, the US was a country where people were stripped of cultural identity and moral values to get them to spend money and accumulate possessions. He had no illusions about the role the US government had played in creating and supporting Pinochet’s brutal military dictatorship. However Argentina was also ruled by a US-appointed dictator, and Father X had no other options. His new life in the US was just another sentence – one that offered no chance of reprieve, short of natural death or suicide.
The American Catholic church had no comparable academic positions to offer him, and he had no experience of parish work. The best the Church could offer was help in applying for Supplemental Security Income (a Social Security program for disabled people with no work history). The latter provides an extremely meager and insecure income and lifestyle. This was especially true after the Republicans took control of Congress in 1994. Thanks to Newt Gingrich’s Contract With America, Father X routinely received letters that his benefits were about to be canceled because of his immigration status.
Judge Garzon and the Bush 6
Although Judge Garzon is most famous for ordering Pinochet arrested, he also indicted Osama bin Laden and other Al Qaeda leaders, as well as issuing an order for British authorities to detain Henry Kissinger for questioning. In 2009, he attempted to indict six former Bush officials for crimes against humanity. The Bush 6 were the legal team who authorized Bush’s use of torture at Guantanamo and elsewhere. They included Bush Attorney General Alberto Gonzales, John Yoo (Justice Department Office of Legal Counsel, Douglas Feith (Undersecretary of Defense for Policy), William Hayne (Donald Rumsfeld’s Chief Counsel), Jay Bybee (Justice Department Office of Legal Counsel), and David Addington (Dick Cheney’s Chief of Staff). Wikileaks cables released last year reveal the heavy handed role the Obama administration in played in having Garzon removed from the Bush 6 case and its eventual dismissal.
The December 2010 Wikileaks Cables
The cables also reveal that the US pressured the Spanish government to force Garzon to drop his investigation into the death of a Spanish reporter who was killed by US shelling in Baghdad, into allegations by Spanish Guantanamo detainees of being tortured and into the use of Spanish bases for CIA “rendition” flights (in which the CIA kidnapped foreign nationals and transported them to prisons in countries that openly practiced torture).1
Prior to Garzon’s May 2010 suspension on so-called “corruption” charges, he was an examining magistrate for the Audencia National, Spain’s central criminal court. He was appointed in 1998 and was responsible for investigating Spain’s most important “organized” crime cases, especially those involving terrorism, criminal syndicates, state corruption and money laundering.
The “inquisitorial” legal system used in France and Spain is very different from the adversarial system used in the US, Britain and other former British colonies. In an inquisitorial system, the court actively investigates the facts of a case. In an adversarial system, the court merely functions as an impartial referee, leaving it to the prosecution and defense to collect and present evidence. Inquisitorial justice is based on “civil” or “natural” law. This holds that legislation based on inherent rights and binding rules of behavior is the source of law. An adversarial system is based on “common law.” The latter regards prior judicial precedent (i.e. previous court rulings) as the main source of judicial law.
In Spain the role of an examining magistrate like Garzon is merely to gather facts, not to prosecute or make legal findings. Once a case is referred for prosecution, another judge oversees the trial and makes judicial findings.
Going After the Extreme Right – and Left
Some of Garzon’s more famous investigations include those of Spanish drug traffickers working with Colombia’s Medellin cartel, violent extremists belonging to the Basque separatist movement ETA, and an interior minister who oversaw Spain’s “dirty war” against ETA (involving right wing vigilantes and mercenaries who engaged in extrajudicial killings and other atrocities). In 1999 he helped convict the Mayor of Marbella for corruption.
Spanish law, which recognizes universal jurisdiction, allows an examining magistrate to charge and investigate a war criminal from another country, provided their own country chooses not to charge them. This is based on the principle that crimes against humanity warrant prosecution, even when they occur outside the national boundaries of the country exercising judicial authority. Because genocide, torture, and similar abuses of state power, are crimes against all, many jurists argue that it’s wrong to limit their prosecution to national boundaries. Especially as countries like the US, which refuse to recognize the International Criminal Court, are unlikely to charge their own leaders with crimes against humanity.
Garzon’s indictment of Pinochet was the first high profile example of universal jurisdiction. His international cases include genocide charges he filed against Argentine military officers for their activities during the 1976-1983 military dictatorship, resulting in the successful prosecution of two of them.
The Charges Against Garzon
Judge Baltasar Garzon himself faces three charges. On reviewing the charges, the Spanish Supreme Court has ruled he must face trial on all of them. The first alleges that he dismissed a tax evasion case against the director of Banco Santander, in return for a 302,000 euro donation to fund human rights classes Garzon taught at the Juan Carlos I Center at the University of New York in 2005-2006. Although no funds went to Garzon personally, the prosecution has a letter he signed requesting the donation from the bank’s chairman Emilio Botin. The evidence suggests the judge may be guilty of a conflict of interest. Although he took the case against Santander more than a year after Biotin made the donation, strictly speaking he should have stepped aside to allow another judge to oversee the investigation. In the US, judicial conflict of interest charges occasionally result in censure, but are more likely to be ignored.2
The second charge relates to violating attorney-client privilege by ordering “illegal” phone taps between defendants (top politicians of the opposition party) and their lawyers. Garzon insists the taps were necessary because the attorneys were serving as financial messengers in a criminal scheme.
Investigating Crimes against Humanity: Illegal under Spanish Law
The third and most serious charge is that Garzon exceeded his authority in investigating crimes against humanity by the brutal Franco regime, in violation of Spain’s 1977 Amnesty Law. If found guilty, Garzon could be disqualified from the bench for 20 years. His supporters find it ironic that he has stood up to multiple death threats from Colombian and Spanish drug dealers, Basque and Islamic terrorists, and organized crime figures – only to be blind-sided by archaic legislation considered illegal under international law.
The charge stems from an order Garzon issued, at the request of families, to exhume the remains of victims assassinated and/or disappeared by the Franco regime. Garzon and the more than two hundred international organizations that condemn the prosecution against him, contend that international law supersedes a national amnesty law in dealing with crimes against humanity. In 2008 the UN Committee on Human Rights advised Spain to repeal the 1977 Amnesty Law. Likewise the European Tribunal of Human Rights has warned that a guilty verdict on this charge will result in Spain’s suspension.
Although Garzon was suspended from his official duties in May 2010, the Spanish authorities allowed him to work as a consultant to the International Criminal Court in La Hague for six months been May and November 2010. In October 2010, an Argentine judge successfully petitioned Spain to be allowed to investigate Franco regime crimes that Garzon was barred from pursuing.
Recognizing and Supporting Moral Courage
I shouldn’t have to make the case why all Americans, across the political spectrum, should support courageous judges like Garzon. They take enormous personal risks to take a stand against US officials who further their political interests by committing crimes against humanity. Without brave individuals like Baltasar Garzon, genuine political change would be impossible. Join the Support Baltasar Garzon Facebook page.