More on Baltasar Garzon

Alas, I don’t agree with very much of KJH’s critique of Eric Posner’s Wall Street Journal opinion piece last week – Eric commenting on the suspension of Spain’s crusading universal jurisdictionalist judge, Baltasar Garzon.  However, rather than get back into that, I wanted to flag instead Financial Times columnist Christopher Caldwell’s comment on the subject.

Baltasar Garzón, the radical and ambitious investigative magistrate, made his name in Spain by revealing the tactics of Spanish counter-terrorism officials in the 1990s. In 1998, he ordered the arrest of the Chilean dictator Augusto Pinochet in a London hospital and in 2009 he proposed trying White House lawyers for the advice they gave George W. Bush on the legality of detaining prisoners at Guantánamo Bay. His agenda is consistently controversial. To some it looks like battling corruption on an ever bigger stage. To others it looks like corruption itself.

Last week’s proceedings concerned allegations brought by conservative activists that Mr Garzón collected big fees for university lectures in New York, and then dropped a case against a director of Banco Santander, which underwrote the lectures. Mr Garzón denies all wrongdoing. But it is a second case against Mr Garzón that has divided Spanish public opinion. In the autumn of 2008, he opened an investigation into the almost four decades of Francisco Franco’s rule, which ended with the dictator’s death in 1975. Mr Garzón called for opening more than a dozen mass graves, including the one in which the poet Federico García Lorca is thought to lie. Under the terms of a 1977 amnesty, enacted during the transition to democracy, political crimes committed under the dictatorship are not prosecutable. Mr Garzón carried on regardless, denying the law’s validity on human rights grounds. In so doing, magistrates argue, he overstepped his judicial mandate. He may soon be suspended from the bench. Mr Garzón’s supporters claim he is the victim of a rightwing put-up job. The claim has considerable plausibility. He has been investigating the so-called “Gürtel” case, a pattern of alleged political pay-offs that implicates two dozen members of the conservative Popular party. Mr Almodóvar has made the outlandish claim that Mr Garzón is being pursued by the Falange, a fascistic movement founded before the Spanish civil war, which is now senescent and marginalised.

The problem is not so much with the Spanish right in particular as with the Spanish judicial system in general. Judges are highly politicised. Mr Garzón is no exception. His justice is selective. He moved against Pinochet at a time when Fidel Castro was visiting Spain. Mr Garzón once told the magazine Mother Jones that he watched Costa Gavras movies when preparing for important hearings. You don’t get much more ideological than that.

So foreigners, those of us outside of Spain, might want to take a little care, as some of the OJ commenters have urged, and maintain a little distance on Garzon personally.  Kevin’s concern is the general question of amnesties; fair enough.  (Update: re-reading this, I realize that my complaint about non-Spaniards not aware of Garzon’s controversies in Spain looks like it is aimed at Kevin and his argument; that’s not my aim, and apologies to Kevin.  Kevin’s concerns are, first the general question of amnesties, which I discuss below, and, second, Chile.  I don’t intend to impute to Kevin naivete about Garzon’s relation to judicial politics in Spain.  I’ve cleaned up some of this below but not all.)  But in discussions surrounding Garzon, in Spain … it’s complicated.

Garzon is a much more complicated figure than he is often made out to be in the pasturelands of academic and activist human rights.  My time in Spain on sabbatical a couple of years ago echoed what Caldwell says, and more.  Garzon’s grandstanding in the horrific Atocha train station bombing in particular irritated many people in Spain, even across the party lines – Garzon’s arrival at the station and taking charge of the investigation ‘on no authority whatsoever other than his own ego’ (I quote an annoyed Zapatero supporter at the time).

There was also quite a lot of irritation that Garzon seemed to have unlimited capacities for pursuing universal jurisdiction claims and attendant international headlines abroad – but could not manage to find time, so the allegation went, for piled up, years dragged out, quotidian domestic cases on his docket.  Garzon is also not precisely the single-minded advocate of international human rights, at least not when the issue involves terrorism inside Spain – the conduct of his investigations into ETA terrorists might have raised eyebrows.  Then there are the allegations – I stress, allegations which might turn out to be untrue, or susceptible of a completely different and innocent characterization, flagged by Jose Guardia of Barcepundit (he writes in Spanish and does his own English translations, which are not quite perfect).  Guardia notes for the international audience what is an open discussion in Spain; Barcepundit is a conservative and hostile to Garzon, but again, at a minimum, aren’t there obvious issues of recusal that bear answering, at least?  Guardia (not Caldwell) writes:

But, as I said, there’s other cases against Garzón that are being investigated. One (link in Spanish), the year on leave he spent teaching in NYU, between March 2005 and June 2006. He failed to declare he was getting paid a grant for him, his assistant, and his daughter schooling, by NYU, so the Spanish judiciary kept paying him his regular salary as if he didn’t (that’s illegal). More damning, NYU paid him with funds provided by Banco Santander. Garzón asked personally in letters to Emilio Botín, the bank’s CEO and one of its main shareholders, to pay NYU in order for NYU to pay him. Worst of all, just as Garzón’s leave ended and after he came back to Spain and resumed his duties as a magistrate, he immediately acquitted Botín from a high-profile case around the illegal concession of loans.

(Just to be clear, as I’ve mixed up columnists a lot here, the above quote was Guardia.)  You might think that none of these are relevant or important issues of judicial conduct, and all of it might be perfectly okay – likewise the wiretapping allegations, etc. – but, well, if you haven’t actually heard of these controversies around Garzon inside Spain, some modest reservation of judgment might be a good idea.  But Caldwell’s column goes on to discuss amnesties generally; a subject on which, obviously, there is room for a general debate, not something particular to the facts of Spanish judicial politics.  Caldwell (this is updated to make clear who is being quoted) says:

However, it is Mr Garzón’s modus operandi, not his politics, that is on trial. His basic tactic has been to delegitimise the amnesties that often accompany (and make possible) transitions from dictatorship or civil war to democracy. In Mr Garzón’s view, the parliamentary arrangements by which Chile granted Pinochet a limited amnesty and a senatorship-for-life were, under international human rights law, null and void. Spaniards, who for the most part applauded when Mr Garzón inflicted this doctrine on the world, are having second thoughts on seeing it applied to their own history.

They should. Mr Garzón’s approach probably causes more harm than it prevents. Since nobody has legitimate authority to legislate for the world, to invalidate national laws in the name of international “norms” is to replace democratic rule with judicial fiat. It is also to falsify history, by promoting the myth that such amnesties are unnecessary accidents – that, but for the compromises of politics, any given democracy could have been brought into being through the political equivalent of immaculate conception. More pragmatically, although impunity for history’s malefactors is an upsetting thing to have to tolerate, it is sometimes the only means of ending a conflict. Amnesties are not negotiated only because a political class is corrupt or stupid. They are also negotiated because they help stop a cycle of belligerence that can continue indefinitely.

This is a general argument about amnesties, not particular to Garzon or Spain, with which can obviously agree or disagree.  It is closer to Eric Posner’s view than Kevin’s, I guess we could say with some understatement.   Caldwell’s reference to “unnecessary accidents” is a good way to put it.  I would add to what Caldwell says above that when later presidents either attack or defend amnesties, there is often necessarily a strategic political element to the statement – such a statement is made not solely with regards to its content, but with regards to the evolving winners and losers in current politics. Which is fine and as it should be for politicians seeking to navigate the present set against the troubles of the past – but then one cannot take it purely for its content, either.  But it’s worth noting that ‘no justice, no peace’ works better as a moral claim than an empirical historical one; or at a minimum, the authority of the former is not authority for the latter, unless your view of natural law is pretty darn strong.

However, I do not agree with Eric Posner’s analysis of where universal jurisdiction is likely to go, whatever happens in the Garzon case.  In particular, precisely because the allegations against Garzon are so particular to him and to Spain, I do not think they provide much prediction for what happens to the general political trend.  My political guess for the future, on the contrary, is that universal jurisdiction claims against the United States, whether in international tribunals or foreign courts, are dead only for so long as there is an Obama administration.  Things will shift again once there is a Republican administration; the bellweather to watch, of course, is targeted killing by the CIA using drones.

Other countries are moving to restrict access to claims by judges of universal jurisdiction, including in Spain, true.  But my read of those is that rather than plainly stripping out the category, instead the move – as in Spain – is to require highly discretionary political assent from someone, whether the Ministry of Justice or Attorney General or someone similar with political accountability.  (Bear in mind that the magistrate position that Garzon occupies is something between a judge and an investigating district attorney in the American system – it is not a judge in the sense of the arbiter who renders judgment on the case.)  In one fascinating conversation with a well-informed friend in Spain, the comment was that the shift in Spanish process was not on account of pressure from the US – and skepticism that there had been pressure – but instead, if not precisely pressure from China, the anticipatory fear of pressure from China.

Bearding a Republican administration is one thing.  Bearding the New Strong Horse – that is quite another.  The suggestion was that countries wanted political flexibility, to use the category for domestic political benefits of pleasing one or another constituency, particularly when it came to the US – but not to run any risks of offending China.  I do not think Eric is likely to be proven right that the age of enchantment with universal jurisdiction is over.  As for Garzon, I foresee that he steps down from the bench, forced or otherwise, and gets hired with a prominent professorship at NYU.

(Conflict of interest and personal pleading watch!:  I should note, however, that Christopher is an old and good friend.  He has been a journalist long specialized in Western Europe, back when it was considered really, really boring, and the author of an important and controversial book on Muslim immigration in Western Europe.  For that matter, he was regularly cited to me by journalist friends in France, Germany, and Spain as one of the few American journalists who took a serious interest in the economic performance of France and Germany.  Rather than, as one irritated French journalist friend once called (after a series of particularly vapid American news stories around the time of the Sarkozy-Royal election battle) the ‘NYT view of France’, as evidenced by its long choice of Paris correspondents, viz., that all of France consisted of the ‘Disneyland of American imagination in central Paris – food and fashion’.  I said, you don’t mind that he is also a senior editor of the Weekly Standard?  To which I was told, Caldwell is serious.)