The Trial of Baltasar Garzón

On April 16, 1963, Martin Luther King penned his “Letter from a Birmingham Jail” in response to criticism about the tactics of the civil rights movement.  King had been arrested for non-violently protesting segregationist laws through a series of boycotts, sit-ins and demonstrations.

Forty-seven years later, his letter speaks to the current situation in Spain, where defenders of unjust laws are criticizing public meetings and non-violent protests of the Supreme Court case opened against Judge Baltasar Garzón for his investigation of crimes against humanity committed in Spain during the Spanish Civil War (1936-1939) and the dictatorship of General Francisco Franco (1936-1975).

Calling such actions “anti-democratic,” such indignation is reminiscent of segregationists defending the system of legalized racial segregation that King challenged in the 1950s.  History has proved that segregationists were on the wrong side of justice, something the Supreme Court should take to heart when deciding this case, which is a litmus test of the health of Spanish democracy.

Garzón’s investigation came under public scrutiny as soon as it was announced in the fall of 2008.  It focused on the coup that launched the Spanish Civil War, as well as the hundreds of thousands of disappeared.  The remains of the majority of those, like the celebrated poet Federico García Lorca, still lie in mass graves across the country.  Under extreme pressure, Garzón was forced to close his case less than two months after opening it.  Shortly thereafter, the Falange, Spain’s fascist party, and Manos Limpios, a far-right organization, filed lawsuits against Garzón charging him with “prevaricación,” or abuse of power for conducting his investigation of the dictatorship.  Their central argument, that Garzón knew he didn’t have jurisdiction to investigate the dictatorship because of Spain’s 1977 Amnesty Law, convinced the Supreme Court, which admitted the suits last year.  On Friday, Garzón will stand trial.

If found guilty, Garzón’s illustrious, if controversial, judicial career will come to a sudden end and the world will lose one of its champions of international criminal law and universal jurisdiction. This is the same judge who had Chilean dictator Augusto Pinochet arrested and tried for crimes against humanity, who was behind the conviction of an Argentine naval officer for his role in the involuntary disappearance of thousands during the “dirty war” of the late 1970s and early 80s, and who opened an investigation into torture at the U.S. military base in Guantánamo.

In Spain, public opinion is divided almost equally on the issue of Garzón’s fate.  A small minority, composed mainly of victims of the dictatorship and several civic organizations that form the historical memory movement, are using his trial as a means to draw attention to the unjust nature of the situation that victims and the family members of the disappeared face, which Garzón sought to amend by ordering the opening of mass graves. At the same time, they are defending Garzón from what appears to be the threat of a fascist victory well into in the twenty-first century, and calling attention to what his conviction would mean for democracy in Spain.

The tactics of this movement, which are rather timid when compared to the direct action strategy of the civil rights movement and the approach of similar movements in Chile and Argentina, have provoked outrage among the Partido Popular (PP), Spain’s conservative opposition party—which has resisted nearly every attempt by the state to address the crimes of the Francoist dictatorship—as well as a significant number of the media which view holding public meetings and demonstrations as “attacks on democracy.”

These were the very words used by María Dolores Cospedal, the PP’s secretary general, to describe an act organized by the rector of a Madrid university last week.  Other critics of the public support for Garzón have claimed that putting pressure on the Supreme Court is inconsistent with democratic behavior and have called for a return to law and order.

These critics sound very similar to those who stood behind the legality of a deeply unjust situation for blacks in the U.S. under legalized segregation.  hey would almost certainly disagree with the comparison, but to the ears of an American familiar with the history of the civil rights movement, the similarities are undeniable.  From behind bars, Martin Luther King responded to such critics by saying that “law and order exist for the purpose of establishing justice” and that “when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.”  But the wisdom of King’s words is lacking not only in the comprehension of these critics, even Garzón’s defense lawyer has criticized the outpouring of public support for his client.  Strategic or not, his comments are lamentable in a case of this magnitude, in which not only the integrity of Spanish law is at stake, but also the very concept of justice in Spain.

If Martin Luther King were alive today, he would undoubtedly support Garzón and those brave enough to publicly challenge the state of impunity that is the glaring stain on the sunny, smiley surface that characterizes Spanish democracy.  From prison, King made a clear distinction between law and justice.  Drawing on religious thinkers, he quoted St. Augustine who believed that “an unjust law is no law at all” and St. Thomas Aquinas who thought that “any law that uplifts human personality is just.  Any law that degrades human personality is unjust.”  Following their logic, King wrote that “all segregation statues are unjust because segregation distorts the soul and damages the personality.  It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.”

As someone who has spent the better part of the past four years researching the genocide carried out in Spain, as well as my experience interviewing more than fifty victims of Francoist repression for the Spanish Civil War Memory Project—an audiovisual archive housed at the University of California, San Diego—and as a volunteer in mass grave exhumations with the Association for the Recovery of Historical Memory, I believe that the state of impunity in Spain has distorted and damaged a great many of its citizens.  Aside from letting torturers and mass murderers live and die without ever having to face any consequences for their crimes, it has also caused a majority to believe that the wounds from the war and the dictatorship shouldn’t be examined now that democracy has provided Spain with decades of peace it has never before enjoyed.  At the same time, a largely forgotten minority is forced to bear the on-going effects of trauma because their wounds haven’t been addressed in any significant way by the Spanish state.

The 1977 Amnesty Law that has foiled Garzón’s quest to bring the same relief to his fellow Spaniards that he has to victims of state violence in Latin America, released political prisoners from the notorious prisons of the dictatorship, such as Burgos and Carabanchel.  At the time, the law was a victory for those who had fought against the dictatorship and who had paid the price of torture and imprisonment.  But more than thirty years later, the law is being used as an excuse not to rectify the situation of the families of the disappeared.  Amnesty law or not, they have what Martin Luther King, or Antigone, would call the moral right to locate and properly bury their dead, a right consistent with international law.  Spain is not only a signatory to the conventions that establishing this right, it has also been a world leader in applying those conventions to investigate crimes against humanity in other countries.

Something is rotten in the state of Spain

While the widely celebrated transition to democracy that followed Franco’s death in 1975—referred to in Spain simply as “la Transición”—was successful in many regards, in recent years it has been exposed as a moral failure by the inability of many of Spain’s citizens to hear the cries of those traumatized by the dictatorship.  Regrettably, these people—particularly the family members of the disappeared—have been re-traumatized by the Supreme Court decision to grant fascism political legitimacy by admitting the Falange’s lawsuit against Garzón.  If this sounds like an exaggeration, keep in mind that the Falange—working in conjunction with Franco and the other generals behind the coup, as well as with Italian fascists and the Nazis—was responsible for the majority of the disappearances that Garzón was investigating before he was forced to withdraw his case.

Long after Franco’s death, Spain is segregated along unspoken lines of privilege that are the direct inheritance of lived experience under the dictatorship.  As a general rule, those individuals and families privileged by the dictatorship continue to be privileged under democracy.  An egregious example of this is the fact that a handful of Spanish judges who took their oaths under the dictatorship and who formed part of the Tribunal of Public Order—a key instrument of legalized state repression—are still practicing law in Spain’s high courts today.  Many of those victimized by the dictatorship continue to face comparative economic hardship, alienation from mainstream society and the frustration that accompanies a lifetime of unsuccessfully searching for a loved one who was taken from them one night at gunpoint and never heard from—and barely spoken about—again.

In his letter, Martin Luther King discussed the negative psychological effects that segregation had on blacks, such as being “humiliated day in and day out by nagging signs reading ‘white’ and ‘colored,’ being plagued with “inner fears and outer resentments,” and the emotional cost of “forever fighting a degenerating sense of ‘nobodiness.’”  I have witnessed these very same effects in many of the people I have been fortunate enough to interview and to meet on the edge of mass graves.  For them, the “nagging signs” are the surprisingly large number of fascist symbols still hanging in public spaces throughout most of Spain, as well as the many street names honoring Franco and his willing executioners.  Imagine swastikas on the sides of apartment blocks and streets named Der Führer, Joseph Goebbels or Josef Mengele in Germany today.  Now try to imagine being a Jew living in Germany under such conditions more than a half a century after the end of WWII.

This is what the victims of Francoist repression and the survivors of genocide in Spain face everyday.  For this reason, la Transición is an empty signifier, if not a cruel joke for many of Franco’s enemies and their descendants.       King used the word “transition” when discussing the necessity of a “transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men [sic] will respect the dignity and worth of human personality.”  This is precisely the sort of transition that Spain needs now, thirty years after the la Transición failed on moral grounds.  Removing Garzón from his post would be a step in the wrong direction.  Allowing him to re-open his investigation would be a small step in the right one.  So would making the Falange illegal, as most fascist parties in Europe have been.

Obviously, the majority of Spaniards are not fascists.  On the contrary, they are firm believers in the political institutions formed during the Transition.  If asked, most of them would probably describe themselves as “democrats” and “moderates.”  Many Spaniards, particularly those born after Franco’s death, are proudly apolitical, particularly when it comes to issues related to genocide and the Spanish Civil War.  This is largely due to the internalization of myths about the Spanish Civil War promulgated by the dictatorship from 1964 onwards, in which the events between 1936 and 1939 were described as the expression of collective madness and the inevitable confrontation between “two Spains” polarized by radical politics.

This way of narrating events, which remains dominant even after a decade of mass grave exhumations that began in October 2000 when Emilio Silva exhumed the remains of his grandfather and founded the Association for the Recovery of Historical Memory, keeps Spaniards mystified about the war and the nature of the dictatorship and ignorant about the genocide carried out by Franco and the Falange.  It also contributes to a generation— largely distracted by mass diversion and wild consumption—that prefers politics in variations of “moderation,” if at all.  Anything perceived as lying outside the realm of “center” politics is negatively labeled radical.  In the case of the Falange and proud Franco supporters, “nostalgic” is the adjective of choice, which reveals more about the speaker than their object of analysis.

The historical memory movement has not been immune to attacks from the majority who advocate a “moderate” politics rooted in the spirit of the Transition, even though the most organizations that constitute this heterogeneous movement have consistently framed their mission in the language of human rights, conscientiously avoiding any hint of the politics of revenge.  Yet some Spaniards consider digging up mass graves a radical political act worthy of insult.  Considering the political framework in Spain, they might be right about the former, but they couldn’t be more wrong about the latter.  Sadly, most Spaniards just don’t care and wouldn’t lift a finger to help the family members of the disappeared.

This sort of apathy, rather than outright hostility, is what has characterized the state’s attitude towards victims of the dictatorship under democracy.  Such neglect has been sanctioned by the widely held belief that moderate politics is a means to prevent the return of civil war, something that is simply inconceivable in modern Spain, whose government currently holds the presidency of the European Union.  But such a myth is extremely effective in maintaining the political status quo, in which progressive politics are easily labeled “radical” or “extremist” or “anti-democratic.”

During his struggles with white racists, King grew increasingly tired of moderates.  What he has to say on this topic is revealing when considered in the Spanish context: “I must confess that over the past few years I have been gravely disappointed with the white moderate.  I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice.”

Those defending Garzón and the ethical claims of the victims that his investigation sought to assist have been audacious enough to call for the presence of justice in the face of a state of impunity.  Like King’s supporters, they understand that when order is exposed as immoral and peace is unmasked as another form of repression for those repressed under the dictatorship, it is impossible to remain silent.  Protesting the effects of decades of political “moderation” is the only alternative to complete resignation.

When King wrote his letter from an Alabama jail, he described the events taking place in Birmingham as a “time when the cup of endurance runs over, and men [sic] are no longer willing to be plunged into the abyss of despair.”  In Spain, that time is finally arriving, long overdue.  It looks like a battered train slowly plowing through a sinister fog.

SCOTT BOEHM is a researcher for the Spanish Civil War Memory Project, an audiovisual archive of the University of California, San Diego where he is a Ph.D. Candidate in the Literature Department.  His is also a former fellow of the Human Rights Center at Berkeley, and a volunteer with the Association for the Recovery of Historical Memory in Spain.  He can be reached at