Judge Garzón's Prosecution: Spain's Version of "Lo Pasado, Pasado Está"

Back in March 2009, a Spanish court took the first steps toward opening a criminal investigation into allegations that six former high-level Bush administration officials violated international law by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba.

The case was sent to the prosecutor's office for review by none other than Judge Baltasar Garzón, Europe's best-known counter-terrorism magistrate, renowned for his determination and his abilities to bring suspects to justice, no matter how powerful or where they may be -- and especially for terrorism and human rights abuses.

His targets have included the al-Qaeda 9/11 and Madrid bombings perpetrators, the infamous Chilean General Pinochet, ETA and related Basque terrorist organizations, Al Qaeda-affiliated terrorist organizations operating in the Maghreb region, including Spanish enclaves in Morocco, Argentine ex-naval officer Adolfo Scilingo who was convicted of crimes against humanity and others.

I don't know where the case against Bush administration officials stands right now and, for the sake of letting bygones be bygones, I will not pursue that at the moment -- especially since mine would be the proverbial voice in the wilderness.

However, the present government in Spain, by no means a voice in the wilderness, apparently does believe in letting bygones be bygones or, as they say in Spain "lo pasado, pasado está," according to the New York Times:

... Judge Garzón is now himself under legal attack for confronting Spain's own dark history. He is on trial this week before the Spanish Supreme Court for daring to investigate crimes committed during the Spanish Civil War and the nearly four-decade dictatorship of Gen. Francisco Franco. The case against him is fueled by domestic political vendettas rather than substantive legal arguments and it could dramatically set back international efforts to hold human-rights violators accountable for their crimes.

The case stems from Judge Garzón's edict, in October 2008, ordering the exhumation of 19 mass graves and charging Franco and his accomplices posthumously with the murder and disappearance of more than 114,000 people.

The edict, however, was challenged by Spain's chief prosecutor, Javier Zaragoza, and ruled against by an appellate court -- "and the case appeared to be resolved. But several months after the ruling, two tiny far-right groups sued Judge Garzón for 'prevarication' -- knowingly overstepping his authority -- in violating the amnesty law."

The Times continues:

Criminally charging judges for prevarication is extremely rare in Spain, and a conviction would disbar Judge Garzón for 20 years -- effectively ending his career. The Supreme Court's zeal to try him has little legal basis; rather, it reflects Spanish elites' widespread unease with applying international legal principles to Spain's conflicted history and a deep-seated animosity toward Judge Garzón that is as much personal as political.

The prosecution of Judge Garzón is having a "chilling effect" on other international efforts to hold human-rights violators accountable, and a conviction would be interpreted as an even stronger warning sign, the Times says, and "[M]ore disturbingly, due to Judge Garzón's legal woes, the case brought by Franco's victims and their families is now languishing. (The only exception is in Argentina, where a prominent human-rights lawyer, using universal jurisdiction, recently filed suit charging Franco with crimes against humanity.)"

The Times concludes:

In his 2005 memoir, Judge Garzón wrote, "A system built on the corpses of those who are still awaiting justice so they can rest in peace is an illegitimate system and one that is condemned to eventually suffer the same fate."

It would send a tragic and telling message to those victims -- and others like them around the world -- if the one person convicted for Franco's crimes is the judge who dared to investigate them.

There are some bygones that just cannot be forgotten or swept under the rug of political expedience. Lo pasado, no siempre está pasado.