Baltasar Garzón: General Franco's Latest Victim

The Spanish judge has taken on Pinochet, Basque terrorists and al-Qaeda, but his own country's past has proven a taboo too far


BARCELONA -- On Friday, May 14, Spanish judge Baltasar Garzón, known around the world for attempting to bring dictators to justice, was told he will now face trial for attempting to do the same in his own country. If found guilty, the 54-year-old examining magistrate could be removed from his job for up to 20 years.

The blow has been expected ever since early April, when Spain's Supreme Court accused Garzón of 'knowingly exceeding his powers' during his 2008 attempt to investigate alleged crimes against humanity carried out during the country's 40-year dictatorship under General Francisco Franco. The case is causing consternation both in Spain and abroad, mainly because it was brought by three ultra right-wing organizations. Among these were the Falange Española, the Fascist party once presided over by Franco himself -- whose military coup of 1936 sparked the bloody, three-year Spanish Civil War, and culminated in a long dictatorship that ended only with his death in 1975. Historians estimate that Franco's postwar reprisals cost the lives of 100,000 people.

Garzón's many supporters have responded to the case with dismay, moved by its outrageous symmetry: a highly respected judge brought to trial, for attempting to try crimes, on an accusation by the disciples of the regime that perpetrated those crimes in the first place.

Throughout April the judge's pending suspension and trial has spawned j'accuse editorials in the New York Times and the Guardian, among many others. Only the Wall Street Journal dissented, heavily critical of Garzón's previous attempts to extradite Chile's former dictator, General Augusto Pinochet.

In Spain, meanwhile, the Garzón case has triggered some of the angriest scenes in recent years, sharply dividing public opinion, setting the political parties at loggerheads, and questioning the so-called "pact of silence" between the country's left and right on crimes committed by the dictatorship, which has been the consensus underpinning Spain's 32-year-old democracy.

So what, exactly, is Garzón alleged to have done wrong?

His far-right accusers, and now the Supreme Court, allege that attempting to criminalize Franco for crimes against humanity falls foul of Spain's 1977 Amnesty Law, and that by declaring himself nevertheless competent to proceed, Garzón had perverted the course of justice.

Nonsense, say his supporters: The trial is an unholy alliance between the far right and a political establishment that does not want to see the Franco regime tainted -- in part because the fathers and grandfathers of many of today's public figures served in it.

If that was the intention, it seems to have backfired. In aiming to keep the past untouched, Garzón's enemies may have done the opposite: The rallies in his favor have been well attended and multi-generational, and anyone observing them can't help feeling a major social movement has been unleashed.

Such an effect would be typical of a judge whose showmanship, and predilection for heroic, almost epic causes, is legendary. What has now opened is only the latest, global chapter in a long running one-man show that has enthralled Spain since the 1980s. Internationally, it is a test case pitching local Amnesty laws against international laws, while for Spaniards it is a painful revisiting of their national story.

On the sunny Saturday afternoon of April 24, knowing that it was only a matter of time before the judge faced trial, the "Garzónistas" across Spain took to the streets.

In Barcelona, Spain's second city, several thousand crowded into the central Plaça Sant Jaume, pro-Garzón banners alternating with black-and-white photos of disappeared family members from the 1930s and 1940s. "Where is my grandfather?" read numerous placards, a plea that had simultaneously spread to pavement rallies outside Spain's embassies in London, Paris, Lisbon, and, several hours later, Buenos Aires.

Among the tricolors of Spain's long-ago defeated Spanish Republic, clusters of Argentine flags also billowed in the square. Many Argentines in Spain are exiles from their own country's dictatorship which ended in 1983, and many are vocal supporters of Garzón. In 1997, the judge had successfully charged Adolfo Scilingo, the Argentine naval officer who executed dissidents by throwing them from helicopters. Scilingo now languishes in a Spanish jail, a test case of "universal justice" that Garzón would try to apply to General Pinochet a year later, in 1998.

The mood in the square was jubilantly defiant rather than angry. The day before, it had been revealed that the magistrate in charge of the case against Garzón, had suggested to the three far-right plaintiffs how they ought to reword their formal accusations. "How can an impartial judge act as tutor to the plaintiffs?" asked Carlos Jiménez, a former senior judge who has come out strongly on Garzón's side. "This is unprecedented," he told the crowd from the podium, "and very serious."

Earlier in the week Jiménez had been rapped by the Supreme Court for suggesting the magistrates overseeing the Garzón case "were complicit with acts of torture." If he was repentant, he didn't show it: He played to the gallery, naming each of the judges deemed to be hostile to Garzón. At each name, the crowd booed. Jimenez described as a "small victory" the eventual exclusion of the Falange Española for their inability to file a correct accusation -- even on the second attempt! At the mention of the Falange, the square erupted into hisses and catcalls.

Before the rally began, I had been talking to 63-year-old Mari Carmen Carrascosa, standing next to me. The photo on her placard was of her grandfather, Mariano, who had been arrested by pro-Franco militias at the age of 61, and died two years later in a labor camp.

It was only in February this year, seven decades on, that Mari Carmen and her brother managed to get information on his demise: "My grandfather was a forestry worker; the documentation shows he was denounced by neighbors in the village because they wanted his job. They cooked up charges of 'military rebellion' that sent him to the labor camp. And the indictment was signed by the Falange Española."

For Mari Carmen it is abhorrent that the political heirs of the organization that destroyed her grandfather should now attempt to persecute the one judge who has tried to lift a lid on the country's past.

"No, I don't see Garzón as a 'hero.' But he does his job: They'll tell you he's sloppy, that he's not a good judge. But he's the one who went after the Basque terrorists, he's the one who investigated corruption by the Socialists and now the Conservatives ... and that's why they want him out of the way."

Wherever you slice Spain's recent history, Baltasar Garzón is there. When the north-west province of Galicia was destabilized by drug barons in the late 1980s, Garzón, newly appointed to the National Court, swooped in and decapitated the clans. His hero was Italy's anti-mafia judge, Giovanni Falcone, who taught that massive strikes against an organization's leadership was the only effective means to destroy them.

Codenamed Operation Necora, Garzón's first major "macro-raid" in 1990 unleashed 200 police officers on 47 top-level suspects in one morning. Many Spaniards, accustomed to judicial foot-dragging, were left breathless with admiration.

Others were not so convinced. For years, Garzón's critics have accused the judge of mounting spectacular raids that result in less-than-spectacular sentencing rates. Between the late 1980s and 2004, 50 percent of the detainees in all of Garzón's investigations were absolved. Critics also slam him for his relentless courting of the media noting that in recent years Garzón garners anywhere between 2,000 and 5,000 references a year -- and that's just in the two main Spanish newspapers.

Yet his achievements are legion, and few would claim that Galicia now is the lawless Sicily-in-waiting of the '80s. Garzón has always prided himself, to use an aptly Spanish expression, in "taking the bull by the horns," modestly noting in a recent book that he put many of his fellow judges' backs up by his "revolutionary" approach.

Central to that approach is his pro-activity. He personally went to see the aftermath of terrorist attacks. He looked at article 23 in Spain's judicial code that allows Spanish judges to prosecute any regime that harms Spanish citizens -- even if that regime is General Pinochet's Chile -- and to the disapproval of some of his peers, he acted on it.

For two decades, though, Garzón's most sustained battle has been with the Basque terrorist group, ETA, which has killed over 800 people since the late 1960s in its campaign for an independent Basque homeland in northern Spain.

In 2002, Garzón achieved the suspension (and later illegalization) of the political party Batasuna, the political wing of ETA, for which he was both lionized as the savior of civil society and demonized as its biggest threat.

Less controversially, dozens of "Etarras," who certainly did have blood on their hands, have been on the receiving end of Garzón's formidable "proactivity." While applauded by most Spaniards, his relentless hounding of the group has put him at enormous personal risk. At least two plans to kill the judge have been exposed (one involving a poisoned bottle of brandy), and while the judge remains untouched directly, ETA long ago exacted revenge by proxy: Carmen Tagle, one of his own attorneys and a close personal friend, was gunned down by ETA in a Madrid street in 1989.

Yet perhaps most remarkably, Garzón has managed to be as implacable with state-sponsored terror as he is with terrorist organizations. He has repeatedly spoken out against what he calls the "State of Necessity": the justification of torture in the pursuit of order. In Garzón's view, the criminality of ETA and Al Qaeda are little different from the criminality of Pinochet or Franco.

In the 1990s, Spain itself experienced the corrupting effects of a secret dirty war unleashed against its own terrorists. Unsurprisingly, Garzón was at the center of the crisis. In a career more or less permanently battered by storms, this one was perfect: a hurricane of high political drama that ended the careers of powerful people, considerably adding to Garzón's already remarkable collection of enemies.

It began when the judge, who has always worn his Socialism on his sleeve, left the judiciary in 1993 to serve as an anti-drugs coordinator in the Socialist government of Felipe González. The charismatic premier, regally known by all as "Felipe," thought he'd finally co-opted the troublesome judge into the establishment. He was wrong, as so many others have been since. In 1994, Garzón, wearied by Felipe's failure to tackle corruption, returned to his old job at the National Court. Once reinstalled, he embarked on an investigation that would dynamite Felipe's government and reputation.

For years, Spanish death squads had been operating in southern France, picking off ETA terrorist suspects, and often killing innocent people. Back in 1988, Garzón himself had put two middle-ranking police officers away for their involvement in the squads. But now the judge started to delve deeper, and to see patterns. In the run-up to the 1996 general election, Garzón proved the death squads operated not only with high-level government knowledge, but funding too. More: He proved that the interior ministry, in which Garzón had been working just months before, had for years been paying the two jailed police officers for their silence.

The sensational revelations led to González's defeat at the polls. The ensuing trial later led to the jailing of the former Security Secretary, the former head of the Civil Guard and the former Interior Minister.

Veteran Socialists never forgot Garzón's "disloyalty." Last year, a Garzón-led investigation uncovered a massive corruption scandal in the opposition Conservative party, which currently threatens its powerful regional barons. In the last ten years he has successfully taken on Al Qaeda in Spain and, less successfully, Silvio Berlusconi. Pushing against relentless political and judicial pressure, Garzón's tendency is to barrel on, blunt, somewhat humorless, in full frontal collision with the byzantine culture of Spanish public life.

International fame came with the Pinochet case in 1998. Garzón failed in his bid to have the General extradited to Madrid, but his dramatic detention order was a vital link in the chain that led eventually to Pinochet's 2006 arrest. Emboldened, two years later, Garzón turned his attention to the biggest prize of all: to set Spain's own house in order, and try Franco posthumously for crimes against humanity.

Opening in the fall of 2008, the investigation proceeded with the usual brio, a flurry of writs ordering city halls, churches, national archives and cemeteries to throw open their records so as to compile a central census of all victims of the war and dictatorship.

The establishment shuddered. The Conservatives described it as politically motivated; many (but not all) of Garzón's judicial peers said the Amnesty Law was untouchable, and that he had overstepped the mark. Finally his superiors stepped in and in November 2008, Garzón voluntarily backed down.

But, as we now know, it did not end there: The Falangists and their allies never forgave the judge the insult he had dealt the memory of General Franco. From the beginning of the last century, writers had talked of the irreconcilable "Two Spains," liberal and conservative, whose clash has caused so such misery and upheaval. Over the last month, many Spaniards who thought such divisions had been consigned years ago to the history books, are now facing up to the fact the Two Spains have never really been reconciled.

"There were soon not to be Two Spains, but two thousand," wrote the historian Hugh Thomas on the murderous days of July 1936, when General Franco's uprising against the democratically elected government split the country into two warring halves.

"Sovereign power ceased to exist, and in its absence, individuals as well as towns, acted without constraint as if they were outside society and history. Within a month, thousands of people would have perished arbitrarily. Bishops would be murdered and churches profaned. Educated Christians would spend their evenings murdering illiterate peasants."

By the time of General Franco's victory in April 1939, the Spanish Civil War had already become an international monument, immortalized by Auden, Neruda, Orwell, Hemingway, and Picasso. But in Spain itself, there is, to this day, no monument, no national day, no political discourse on the war unmarked by rancor, no small community where the division of victors and vanquished in the dictatorship does not continue to rankle. The war and its aftermath is the ghost rhetoric that underpins all political discussion. It cuts across whole communities and even families.

Above all, there are pits of bones. In a country a little larger than California, mass graves are everywhere, deep in pine woods, at lonely village crossroads, under the walls of city cemeteries, bordering motorways, overlooking the tourist fleshpots of the coasts. Thomas, a cautious chronicler, put the victims of wartime executions in the Republican zone at 55,00 and in the Francoist zone at 75,000. After the war, he estimates executions of the defeated Republicans by the Franco regime to total 100,000.

Franco later enshrined the version of exclusively "Red" terror in the school curriculum. Sites such as Paracuellos near today's Madrid airport -- where between 2,000 to 5,000 people, many civilians, were shot by left-wing militias in 1936 -- were turned into official cemeteries by Franco, the widows pensioned, their dead honored as "Fallen for God and Spain."

For all the moral complexity of Spain's grim twentieth century, one fact stands out in stark simplicity: Since democracy was restored in 1978, no official recognition has ever been extended to the remains of Franco's victims, the forbears of millions of today's Spaniards. As recently as 2007, to give one macabre example, amateur investigators in the city of Valencia found a vast mass grave from the immediate postwar period containing thousands of bodies. Whether they died as reprisals of the Franco regime, of the privations of the postwar, or a mixture of both, is not yet clear. Investigators say Valencia's Conservative mayor has blocked further investigation of the grave, and has ordered it to be built over. Such attitudes explain why so many people joyously hailed Garzón's 2008 investigation, and why so many others wanted it stopped in its tracks.

Talk against "opening old wounds" has been Conservative doctrine throughout Spain's transition to democracy. But the metaphor is skewed, as everyone knows the wounds festered long ago. For one young boy, born in the mid 1950s in the vast olive belt around the southern city of Jaén, stories of injustice dominated family life: "I heard so many of those tales," Garzón wrote in a recent memoir, "that they became engraved in my childish memory, and I resolved early on to do something about it so that terrible era would never happen again."

One journalist who has observed Baltasar Garzón closely over the last decade is Ignacio Orovio, former judicial correspondent for the La Vanguardia daily. His assessment is mixed: "No aspect of criminality phases him: drug traffickers, arms dealers, terrorists, corrupt politicians," he told me. "You have to be courageous to be a good judge, and Garzón has courage in spades."


"But he wants you to know it. He's expert in playing the press. He carefully releases scraps of information to the right people, and does so purely in the service of his own ego."

On the current case for which he faces trial, Orovio considers it a matter of bad timing on Garzón's part:

"His taking on of the Franco-era crimes coincided with his investigation into the Conservative party corruption, and he's ended up fighting on two fronts. It's typical of Garzón: He thought he could take on all comers and win."

Orovio leans forward, talking in the low voice that people still use in Spain when talking the politics of national memory: "The majority of judges in Spain are deeply conservative. The whole Spanish right is alarmed. Many of the Conservative party are the very children of the Franco regime Garzón wanted to criminalize. He has broken the consensus not to touch these things from the past, and to do so is to tread on extremely dangerous territory."

While many commentators agree that the whole affair is incomprehensible without this political context, some experts also support Garzón on purely judicial terms. Magistrate Clara Bayarri, a colleague of Garzón's at the National Court, wrote recently that she had, in fact, supported Garzón's investigation into the Franco regime, and that she did not consider him to lack the powers to continue investigating, because his reasoning was valid: Article 6 of the judicial code binds judges and tribunals to the Constitution. Article 10 of that very Constitution binds Spain to the Universal Declaration of Human Rights.

The relationship of national laws with international law is, of course, the knot at the heart of the Garzón affair. Should Spain's 1977 Amnesty Law, which predates the Constitution, stand in the way of international legislation to which Spain is now signatory?

One man with a unique perspective on this vexed question is the Chilean judge, Juan Guzmán, who led the main investigation against General Pinochet. The ex-dictator was put under house arrest in 2006 after Chile's Supreme Court stripped him of immunity. For its part, Argentina swept aside its own amnesty laws in 2003. Both were processes that Garzón's own, earlier, Spain-based investigations against Pinochet and Scilingo had played their role in helping to bring about.

Speaking by phone from Chile, Guzmán was unequivocal: "Spain's Amnesty Law only covers common crimes. The Franco regime committed crimes against humanity. Such crimes never expire, and can never be amnestied."

Critics of Garzón's investigation often point out that even if the Franco regime committed crimes of this order, it did so long before relevant human rights legislation, such as the 1998 Statute of Rome.

In response, Guzmán argues that there have been cases where crimes against humanity have been judged with a framework based on little more than "humanitarian decency," such as the Nurenberg trials after the Second World War. "Baltasar Garzón is in a situation in which he must interpret to what extent he has the power to proceed," Guzmán insists: It is a process open to interpretation, but which in his case is not a perversion of justice. "The accusation against Garzón" he told me, "is abusive and unjust."

Amid the Garzón furore at the end of April, the Socialist government published a map of Spain with the locations of known mass grave sites. Regional Conservative authorities refused to cooperate with the project, so those areas were left blank. Both parties accused each other of using the graves for their own electoral ends.

The upcoming trial of Garzón can only aggravate such deep social and political rifts. The pro-Garzón protests have already emboldened the grandchildren and even great-grandchildren of the disappeared to demand an honor long denied them. It is a measure of Garzón's courage that while he may have touched off this social transformation, he has not retired to watch it from a safe distance.

At least not yet. If he is found guilty and his career in Spain is over, he has any number of posts he might take up abroad. In such an event, Baltasar Garzón would be, as one commentator recently stated, "Franco's last exile." Whatever the world's gain, the loss to Spain's credibility would be enormous.