Baltasar Garzón and the tension between national and international laws

by liberal japonicus

This Guardian piece and the accompanying video is well worth your attention. Garzón was the judge who issued an international arrest warrant for Augusto Pinochet for his role in torturing and executing Spanish citizenship, followed by obtaining pursuing two Argentinian generals for the crime of genocide during the Argentinian dictatorship. No slap on the wrist either, one of the generals was sentenced to 640 years in prison. Garzón was also reported to be pursuing Gonzales, Yoo, Feith, Bybee, Haynes and Addington for charges and this New Yorker article gives some of the background on that.

In April, Garzón opened an investigation into killings during the Franco regime and was suspended in May for abuse of power, specifically for ignoring the amnesty law related to that regime, and now, he is on trial in three prosecutions. One, which hasn't come to trial, concerning connections with a bank, and the second concerning Garzón ordering the recording of conversations between defense lawyers and prisoners in a goverment corruption case, seem to me to be incidental to the questions involved, but the third is much more related . It is a private prosecution brought by a rightwing trade union, dealing with the same point for which Garzón was suspended in May, that he ignored the amnesty laws to bring about these prosecutions. These amnesty laws came into force in 1977 as Spain was transitioning to democracy and I think it is important to note that even after the passage of these amnesty laws, there were two attempted coups, in 1981 and 1982, the first averted when King Carlos appeared on TV to denounce the conspirators. In checking references and dates for this, I see that a book about the first coup called Anatomy of A Moment has just been translated. The title refers to

...the moment ... when Tejero, just after storming into Parliament, screams at the MPs to get down on the floor. His Civil Guards let off a burst of gun-fire. Everyone flings themselves under the benches, except three people, who remain in their seats while bullets whirr past – Prime Minister Adolfo Suárez, Santiago Carrillo, leader of the Communist Party, and General Gutiérrez Mellado, the Deputy Prime Minister, who had courageously advanced on Tejero and ordered him to lay down his arms.

I'm a big fan of Faulkner's comment that 'The past is never dead. It's not even past.' and I think the case of Garzon is reflective of those bargains made when Spain went from Franco to democracy.  

Comments

[Lurker]

Personally, I have no dog in this fight. No relative of mine is Spanish nor fought in the Spanish civil war and I've lost no relatives in political violence.

Still, I have to points I want to make about general amnesties given for political reasons:

1) To be credible, the amnesty needs to be non-revokable. If there exists a risk that the amnesty may be revoked, once the opposing side is firmly in the power, giving up fight or power for the price of amnesty is suicidal. You are simply post-poning the date of judgement, not slipping free.

2) The double jeopardy comes to play here. It is morally wrong to revoke amnesty, once granted, as a person who has been pardoned has already been absolved of all responsibility.

[Harald Korneliussen]

Garzón sounds like someone Julian Assange would want to interview on that new TV show of his.

[Chuchundra]

I don't think that anyone actually believes in amnesty anymore. Someone somewhere down the line will almost certainly find some way around it, ignore it or exploit some loophole in the name of "justice".

I think our recent history with dictators on the way out shows this. If you're just going to be put against a wall and shot, there's no real incentive to surrender. You may as well fight on to the end.

[liberal japonicus]

Good points, Lurker. My Spanish is crap, so if there were any folks here who had more knowledge about the content and structure of the amnesty laws, I'd love to hear from them.

I'm also curious how various amnesty laws in different locales have dealt with challenges.

One thing I didn't note, some sources (and defenders of Garzón) note that his investigation began with requests from groups representing people who had gone missing. It seems to me that along with an amnesty law, there has to be some sort of accounting, a setting down of facts and an admission of guilt. Something like responsibility has to be accepted before it can be absolved. I'm not at all sure that was the case in Spain, given that amnesty was granted before two attempted coups, but I really am not sure.

[McKinneyTexas]

It seems to me that along with an amnesty law, there has to be some sort of accounting, a setting down of facts and an admission of guilt. Something like responsibility has to be accepted before it can be absolved. I'm not at all sure that was the case in Spain, given that amnesty was granted before two attempted coups, but I really am not sure.

Amnesty is a blanket pardon. No admission or accounting is necessary. Indeed, requiring a post-amnesty admission of guilt necessarily entails ongoing prosecution and defense and a branding of anyone who is convicted. Any post-amnesty bad acts, e.g. attempted coup, are outside the amnesty and are rightly prosecutable. Amnesty follows some civil wars as a means of securing the peace and moving forward. Unavoidably, victims of pre-amnesty hostilities are left without a remedy. Those victims tend to fall on both sides of the war. In wrapping up a war, civil or otherwise, there is seldom complete and final justice.

[liberal japonicus]

McK T, I dunno about that. The South African Truth and Reconciliation committee set out the requirement for amnesty as testifying, though where the horse and the cart were, I'm not really sure.

While I'm sure that the traditional definition of amnesty would be something that is 'granted', with no requirement on the part of the recipient, I do think that a more nuanced method is necessary to deal with the various situations. If amnesty is just a quid pro quo for a cessation of hostilities, it then becomes nothing more than a political bargain, which probably underlines chuchundra's observation.

[byomtov]

A setting down of facts is crucial, I think, but that's not the same thing as an admission of guilt by lots of individuals.

It seems to me that if you give blanket amnesty, it will likely cover some people who are not actually guilty of anything. I don't know how the Spanish amnesty was worded, but if it was for something like, "all members of the Franco regime" then it might cover municipal officials who were just in charge of picking up garbage, or something.

South Africa may have handled the situation well, but I'd fear that this confession requirement could easily turn into a series of show trials, especially when the sanitation official decides to make some vague confession just to protect himself.

On the other hand, requiring those for whom there is actual solid evidence of wrongdoing to testify is a different matter, as is building as accurate and complete a historical record as possible.

How's that for a waffling comment?

[Roger Moore]

McK T, I dunno about that. The South African Truth and Reconciliation committee set out the requirement for amnesty as testifying, though where the horse and the cart were, I'm not really sure.

And important point in South Africa is that the amnesty was limited. The commission had the responsibility to judge the requests for amnesty, granting them only for the crimes admitted to and only if the crime was genuinely political, not an ordinary crime that used the political violence of the time as a cover. They also took testimony from victims, which served both to give them a voice and to force perpetrators out of hiding.

[Sebastian]

Also I think it is important to note that the South African Truth and Reconciliation was brought into being almost immediately and that the rules surrounding the amnesty were discussed almost immediately.

The amnesty regarding the Franco regime took place almost 50 years ago.

"One, which hasn't come to trial, concerning connections with a bank, and the second concerning Garzón ordering the recording of conversations between defense lawyers and prisoners in a goverment corruption case, seem to me to be incidental to the questions involved"

I can say nothing about his bank dealings, but ordering the recording of conversations between defense lawyers and prisoners strikes me as demonstrative of his methods--he is willing to actively break the law in order to prosecute his mission. That isn't appropriate for a judge.

[McKinneyTexas]

If amnesty is just a quid pro quo for a cessation of hostilities, it then becomes nothing more than a political bargain, which probably underlines chuchundra's observation.

As RM points out, the deal in South Africa was a "repent and receive" proposition that the majority was decent enough (more than decent, really) to offer to the minority. In Spain, Franco ran the country for decades. Millions of people were, if not adherents, tacitly complicit. Transitioning from a dictatorship to democracy in these circumstances requires assurances to all possible miscreants that revenge will not be taken, otherwise, they might as well go down swinging, so to speak.

[Yama001]

I believe the position Garzon held had features that are closer to that of a prosecutor - it is not quite what we think of as a judge in the US.

Looks like he stepped om the wrong toes, anyhow.

[Sebastian]

The Spanish system does have a somewhat mixed system. But even if he were a prosecutor, you can't be tapping defense conversations.

[liberal japonicus]

The Spanish system does have a somewhat mixed system.

I get that impression from the articles, so I wonder if anyone knows more. One of the defenses by Garzón is that another judge either proposed or approved it, so this is clearly targetting him, but I'd need to know how that other judge's approval or proposal came about.

And McT, I see what you are saying, but the investigations weren't targeting civil service functionaries, but were involved in the exhumation of 19 mass graves, which seems to be on a different level.

This, from El Pais (which is a left leaning newspaper) has some more on the trial.

[Snarki, child of Loki]

@Sebastian:
"But even if he were a prosecutor, you can't be tapping defense conversations."

Except for Gitmo, of course.

It certainly does sound like Garzón has gotten out of line, but even more certain that he's ruffled a lot of right-wing feathers. Really, prosecuting someone covered by amnesty? Isn't that like a US prosecutor bringing charges against someone past the statute of limitations? So a judge (a judging judge, not a prosecuting judge) tosses out the case.

As for some prosecutions after amnesties (Pinochet and similar): IIRC, the basis was that the "missing" people were kidnapped, and unless they were shown to be dead, the charge was for kidnapping, continuing past the amnesty to the present day. All the criminals have to do to get out of the kidnapping charge is openly confess to murder. Thousands of murders.

[liberal japonicus]

In regards to amnesty, the amnesty law was passed in 1977, but some articles suggest that a Historical Memory Law, which was passed in 2007, covers what Garzón was doing. I haven't found a list of people indicted, but it seems that a large number of them were already dead, and Garzón had the death certificates presented in court and then struck them off the list. How Garzón's work interacts with that law is something I'd like to understand.

Also, looking for more information on the ordering of the wiretaps, there was this article that said the purpose of the wiretaps was because lawyers were conspiring with defendants to launder money. I'm curious, in the US, if defense lawyers were conspiring to commit further criminal acts with defendants, is the fact that it is privileged communication an absolute defense in the US?

[Hartmut]

It seems to be consent in the newspapers over here (Germany) that a) Garzón was likely a wee bit overzealous in the pursuit of justice but b) the charges against him have very little to do with his conduct but with the establishment feeling threatened. He was good for the Spanish image as long as he went after unpopular foreigners but as soon as he began to look at sleaze and dirty open secrets at home he lost his usefulness. I'd say that is not uncommon elsewhere too. Nuremberg principles are nice but only if applied to others. Nuremberg was legally questionable too. Ironically in hindsight the most flawed decisions there were two of the acquittals

[Lurker]

I'm from Finland, and here, we have some experience of political wide-scale amnesties. I'd like to give a few as case studies, while they don't have so much in common with the Spanish one.

1) The victorious White side of the Finnish Civil War of 1918 granted a blanket amnesty to all its members immediately after the war. This precluded all civil and criminal suits on any deeds that were "patriotically" motivated. Private acts of violence of the White Guard members were, in practice, included in the amnesty.

2) The losing Red side was gradually pardoned, starting about four months after the end of war. The last pardons were issued in 1927. The pardons were of blanket nature, and even persons who had clearly committed violence against civilians without any kind of authorisation or command position were pardoned. Almost all members of the Red side were out of prison by Spring 1919. No further legal actions were taken against the Red Guard members on the basis of civil war after the pardons. In 1970's, the surviving Red and White Guard members were granted pensions.

3) The rank-and-file members of the attempted right-wing coup'd etat of Mäntsälä in 1932 were pardoned without judicial inquest as part of the surrender deal. Only about 30 leaders received prison terms after a lengthy process, where 102 persons at officer level were prosecuted. No further judicial inquiries were made of the rank-and-file members.

4) The members of the communist fifth column all received a blanket pardon in 1944 as part of the peace treaty between Finland and the Allies. This meant, inter alia, that all convicted deserters were pardoned if they declared that their desertion had been done to help the Allied cause. No further judicial inquiries were ever made.

5) A group of 8 Finnish politicians received in 1945, at the demand of the Soviet Union, prison terms ranging from 2 to 10 years for "the crime of violating the good of the realm while holding office" (in practice, starting an aggressive war), an offence that was statutorily enacted post facto for this purpose. They were released after serving their sentence, and in some cases, continued their political or academic careers successfully. In 1990's, their posthumous pardon was debated but none was given for two reasons: First, you cannot pardon a dead man in Finland. Second, you cannot return honour and dignity to those who have never lost it. To pardon these men would have implied that the state would have assumed them guilty of something.

In all the above cases, general amnesties were granted to ensure political stability. After this goal was attained, the sleeping dogs were left to lie.

[sapient]

I'm curious, in the US, if defense lawyers were conspiring to commit further criminal acts with defendants, is the fact that it is privileged communication an absolute defense in the US?

No, there's a crime-fraud exception to the privilege.

Interesting, Lurker. Thanks.

[liberal japonicus]

Interesting stuff Lurker. What you wrote reminded me of this story. This isn't what I originally saw, but it gives an idea. Not directly related, but interesting nonetheless.

Also, thanks to sapient for the reference.