By Geoff Pingree and Sebastiaan Faber
From The Nation | Original Article

When Spain's Supreme Court voted on March 25 to proceed
with a case against investigative magistrate Baltasar
Garzón 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.

Garzón, 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 Garzón 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--Garzón 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 Garzón'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 Garzón 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 Garzón,
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."

Garzón 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 Asociación 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 Española,
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.

Garzón 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 Guantánamo while also
confronting Al Qaeda.

It is no surprise that Spanish and international
conservatives have displayed a visceral contempt toward
Garzón, 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 José Luis Rodríguez Zapatero has resisted
Garzón'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 Guzmán Tapia, have
come out in strong support of Garzón--as did tens of
thousands of Spaniards in mass demonstrations on April
24--the US government has kept notably silent.

Whether the charge against Garzón 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
Garzón's case reached a new level on April 21, when
Justice Varela, noting that the plaintiffs' briefs
against Garzón included confusions of judgment and fact
and unwarranted references to Garzón'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, Garzón 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.