Friday, April 10, 2009

Garzon & Boya: A Judicial Farce

Spanish Judge Baltasar Garzon recently initiated an investigation into alleged war crimes, human rights violations, and torture by six Bush administration officials. He requested the prosecutor’s office examine a complaint filed by Gonzalo Bove.

The six Bush officials are Attorney General Alberto R. Gonzales, Douglas J. Feith, Judge Jay Bybee, William J. Haynes II, David Addington, and Professor John Yoo. Garzon has not, to date, proceeded against President Bush, Vice President Cheney, or Secretary of Defense Rumsfeld.

Judge Garzon is one of six examining magistrates of the Spanish National Criminal Court. Judges play a different role in Europe than in the United States. They can be as much investigatory as judicial.

He is highly regarded in international circles for issuing on October 10, 1998 an international arrest warrant against former President Pinochet of Chile, and filing genocide charges against several Argentine Junta officers.

Garzon hardly displays judicial impartiality. In January 2003 he strongly criticized the United States for the Iraq War and Gitmo. We do not expect our judges to adjudicate cases which they have previously, publicly prejudged.

The left has been forum shopping for a favorable judge or prosecutor. A German prosecutor previously refused to issue an indictment against the Bush Administration officials.

Earlier this year, another Spanish judge, at the request of Boye on behalf of his client, the Gaza based Palestinian Center for Human Rights,, initiated a war crimes investigation against seven Israelis, including then Defense Minister Binyamin Ben-Eliezer, for dropping a bomb on a housing block in Gaza, killing Salah Shehada, a Hamas leader who dispatched scores of suicide bombers into Israel.

Garzon’s record as a judge is checkered. He investigated Italian Prime Minister Silvio Berlusconi in 2001-2002 for alleged tax evasion, which is hardly a crime in Italy, but it involved a Madrid company. He was unsuccessful in getting the Council of Europe to lift the Prime Minister’s immunity. He still would like to extradite Henry Kissinger.

Garzon ordered an investigation of the Franco regime on October 17, 2008, but had to drop it one month later. An amnesty had been enacted in 1977.

Garzon did act earlier in his career against the ETA and Al Qaeda, but his outrage tends to be selective, mostly against political opponents and conservatives.

Missing in his resume are prosecutions against Communist and left-wing thuggish dictators. He has not pursued human rights violations against Fidel and Raul Castro, Hugo Chavez, or Robert Mugabe. He has been silent on Russia’s treatment of Chechnya, and the Chechnyan’s terrorist acts. He has ignored Russia’s invasion of Georgia a few months ago. He has found no reason to act against Hamas and Helbollah, not to mention Iran, for their multiple human rights violations. The IRA receives no attention from the judge.

Chilean Gonzalo Boye, the complaining attorney, has an interesting past. He earned his law degree from the Universidad Nacional de Educacion a Distancia, while serving eight years in a Spanish prison. His crime was, as a member of the Chilean terrorist group Revolutionary Left Movement (MIR), he kidnapped a Spanish millionaire, Emiliano Revilla, on behalf of the Spanish terrorist group ETA. Revilla was held for 249 days in a 2 by 1 by 1.8 meters cell.

Some find religion in prison; Boye found the law.

Judge Garzon took a sabbatical in 2005-2006 to teach at NYU. He received over $200,000 in salary, travel expenses, and tuition for his daughter. The problem is that he continued to draw his judicial salary at the same time.

The practical effect for the time being is that the six accused need to watch their travel outside the United States. They should not take solace in listening to the Three Dog Night hit: “I’ve never been to Spain, but I kinda like the music.”

Spain lost the remnants of its once great empire in 1898. Yet, it claims universal jurisdiction for genocide, crimes against humanity, and torture committed anywhere in the world.

Universal jurisdiction is a troublesome doctrine. It essentially allows any country, large or small, to prosecute citizens of another country at any time for any reason. The prosecuting countries could be as large as China, India, Russia, United States or Brazil, or as small as the .2 square mile Vatican City, Monaco, Malta, Lichtenstein, Grenada, Tonga, or the Comoros. The Vatican City certainly has the high moral position and canon law to prosecute crimes against humanity.

Grenada might still harbor a grudge for the United States’ invasion in 1984. Who knows, Mexico might wish a reconquista of California and the Southwest. In spite of treaties, European countries may still seek the return of lands lost in the aftermath of past wars. Japan, ignoring Pearl Harbor and the Rape of Nanking, could seek justice for Hiroshima and Nagasaki, while Germany might still be seething over the fire bombing of Dresden.

Garzon & Boya: A Judicial Farce

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