This weekend, Baltasar Garzón, the Spanish judge who ordered the arrest of former Chilean dictator Augusto Pinochet, received the ALBA/Puffin Award for Human Rights Activism in New York. My roughly two-hour interview with Garzón before his receiving the award proved quite newsworthy with Garzón discussing subjects ranging from the charges that he is facing in Spain to current issues of human rights violations by the United States to the threats to assassinate him. Most notably, Garzón criticized the Obama Administration for rolling back on the Nuremberg principles and violating international obligations to prosecute individuals for torture and war crimes.
Here are some highlights of the interview:
• Garzón discussed the main charge against him that he exceeded his authority by opening an investigation in the disappearance of as many as 200,000 people during the brutal dictatorship of Francesco Franco. Victims of the killings had come to his court and Garzón ruled that the amnesty passed two years after Franco’s death was invalid as a matter of international law. This is not a radical view. Courts in Chile, for example, came to the same conclusion and many international law experts agree that a country cannot simply give amnesty for war crimes. Such laws would gut international legal standards since any country could simply excuse its own war criminals. Indeed, President Obama and Congress have effectively granted immunity to our own accused violators both by announcing that no CIA employee will be prosecuted as well as passing legislation affirming such protection for Americans involved in the torture program. Garzón was quite clear that the position of the Obama Administration is clearly in violation with international law.
• Garzón stated that the Obama Administration’s use of the “just following orders” defense as well as the protection of lawyers involved in the torture program violated the Nuremberg principles and precedent.
• Garzón questioned the legality of the U.S. killing of Bin Laden given the lack of approval by Pakistan and the appearance of a mission to assassinate rather than capture the terrorist. He not only stated his view that such an operation would presumptively violate international law but lost a golden opportunity to interrogate the leader. Garzón previously successfully oversaw the prosecution of 18 Al Qaeda members and is viewed as a tough anti-terror judge, including his investigation of ETA.
• Garzón discussed how the charges against him were brought by a far right party with connections to the Franco regime. I was particularly concerned about the second accusation that he ordered the eavesdropping on communications between attorneys and their clients in the corruption investigation of one of Spain’s conservative parties. He has filed objections under the European Convention on Human Rights. I remain troubled by such orders, though we have seen such surveillance in limited cases in the United States. Garzón insisted that he placed protections on the use of the information and that the judge that replaced him continued the surveillance. He also noted that prosecutors supported the legality of the order and that there was compelling evidence to suggest that the lawyers were being used to funnel money illegally. I am still not fully versed in the underlying facts of that case and this may be a point of disagreement between us. However, Garzón gave a far more detailed defense of his order this weekend and raised serious concerns over the lack of consistency in pursuing him for such an order when the practice has been reportedly followed by other judges and prosecutors..
• Garzón gave unqiue insights into his legendary effort to bring Pinochet to justice and the effort by both the Bush and Obama Administration to pressure the Spanish government into blocking his efforts to prosecute Bush officials.
In my interview, Garzón himself acknowledged that people can disagree on such rulings However, one can disagree with Garzón’s interpretations on some of these legal questions ranging from the use of universal jurisdiction to the scope of surveillance to the validity of immunity laws, what should be clear is that it is an abuse of judicial independence to charge a judge over such disputes. His is charged with prevaricación (or malfeasance), which allows judges to be prosecuted for “unjust” judgments — a highly controversial practice.
This is particularly worrisome over the question of the validity of the amnesty law. There is ample support for such a view and Spain has layers of appellate courts to address whether such an interpretation has merit. Even if Garzón failed to follow binding precedent, this process seems at odds with basic notions of judicial process and the rule of law. Likewise, I have serious difficulty with the surveillance of attorney-client communications, but it appears that such surveillance has been allowed under Spanish law. This raises a legitimate question of a double standard being applied with Judge Garzón.
For those who have accused Garzón of targeting just conservative groups, they may find it interesting to see his criticism of the Obama Administration and to hear about his record in fighting terrorist and drug operations. Human rights advocates and civil libertarians in the United States will be particularly interested to see Garzón’s discussion of our own unfolding violations of international law. Waterboarding may have originated in the West in Spain during the Inquisition. It was therefore fascinating to hear Garzón’s view of our embrace of the torture technique. He said that it was unquestionably a form of torture and a war crime.
Below is the taped interview.
Here is the press release for the event: ALBA-Press-Release-on-Event-May-14