Ghosts of Spain (59 page)

Spain has no death sentence, nor does it hand down life prison terms. The three men will each serve up to thirty years in jail. A dozen other defendants were given lesser prison terms for belonging to a terrorist group, but their direct participation in the attacks was not proved.

The joint leaders of the gang were two of the men who had blown themselves up – the violent drug smuggler Jamal Ahmidan, alias El Chino, and the quiet, postgraduate economist Serhane Ben Abdelmajid, alias El Tunecino. Documentary film-maker Justin Webster spent time after the attacks getting close to the friends and families of both men. His film,
The Madrid Connection
, revealed some deep psychological truths about them. Both men sought, and failed to find, an identity as Muslim immigrants into Spain. El Chino had fled his native Morocco after killing a man in a knife-fight. He ended up selling doses of heroin, living on the edge and wielding a knife in Madrid’s Lavapiés district. ‘We consumed cocaine non-stop,’ the mother of his child said, recalling the days when he was a feared, street-wise petty crook. He later cured his own heroin habit, made large sums of money with the illegal night-club drug ecstasy and turned to religion. ‘I don’t care if I die,’ he told his girlfriend during his down days. ‘I’ll never see my family again.’ The intense, polite El Tunecino failed to understand why he had such a lowly status in Spanish society. ‘Why are they better than us? I am also a man. I am intelligent, a student, an economics graduate. Why aren’t I equal to them?’ he would ask his Muslim friends. El Chino turned to crime. El Tunecino turned to religious extremism. Eventually, and lethally, they turned to one another.

‘
Caso cerrado
’, ‘Case closed’, cried
La Vanguardia
newspaper the morning after Judge Bermúdez had read out the verdict. Unfortunately that was not the case. Before the trial the People’s Party had given wings to the conspiracy theories. Afterwards, it called for further investigation. The Socialists reacted in kind. ‘Say after me – “It was not ETA”,’ taunted interior minister Alfredo Pérez Rubalcaba – who would eventually go on to replace Zapatero as the party’s leader in the 2011 elections. An opinion poll for the
Cadena SER radio station, a week after the sentence, found one in six Spaniards still thought ETA had been involved. Some 57 per cent thought the People’s Party government of the time had tried to fool them about who had carried out the attacks. The division, as ever, was deep. This particular ghost may never be laid to rest.

The ferocious debate over the historical memory law proved that this, too, was a matter on which Spaniards were never going to agree. ‘Zapatero wants to divide Spaniards and turn them against each other,’ the People’s Party’s Ángel Acebes said when the new law was presented. Francoism had not been that bad, argued another former People’s Party minister, Jaime Mayor Oreja. ‘It was an extraordinarily placid time,’ he said.

Zapatero’s government took several years to come up with a law, knowing that it was walking through a historical minefield. The pact of forgetting, however, remains intact as far as the naming of perpetrators is concerned. An early draft of the law proposed what amounted to ‘victims’ certificates’ – which a family could request and which would detail exactly what happened to their deceased or disappeared relative. But those documents would have explicitly omitted ‘any reference to the identity of anyone who took part in the events’. There would, in other words, be no individual guilt.

The earlier drafts of the law – however carefully it trod – had enraged conservative opinion, increasingly represented by the country’s Roman Catholic bishops and
El Mundo
newspaper. The former argued that a historical memory law would reopen old wounds. The latter claimed it broke the spirit of Spain’s transition to democracy. Both claimed the law was one-sided. The Vatican intervened in the debate in its fashion, holding its largest-ever mass beatification in October 2007. On that occasion 498 people, almost all of them Spanish priests and nuns killed by leftist Republicans during the civil war, were beatified.

Amongst those attending the Vatican ceremony was José Andrés Torres Mora, a Socialist deputy from Malaga whose great-uncle, Juan Duarte, was one of the martyrs. Duarte was a priest whose
killers – Republican militiamen – reportedly first cut his genitals off with a barber’s knife. ‘I don’t share his beliefs, but I especially don’t share those of the people who shot him,’ said Torres Mora. By
co-incidence
, Torres Mora was hand-picked by Zapatero to propose the historical memory law to parliament – a task that, he told me, he accepted as a painful, if necessary, burden. ‘Let us respect the idea that those who suffered during the Civil War should be recognised, just as I accept the beatification of five hundred martyrs,’ he said.

The law was, in fact, largely symbolic. Francoist symbols, it ruled, must be removed from public, or publicly funded, buildings. (A last minute let-out clause absolved the Church from this.) The kind of political events I had witnessed in the Valley of the Fallen on the anniversary of Franco’s death were banned. The underground basilica where Franco is buried can now be used only for religious motives. A committee of experts was set up and recommended that his remains be removed, but that is unlikely to happen as it would need the consent of the Church. Some 450,000 descendants of those who left Spain between 1936 and 1955, for political or economic reasons, were allowed to apply for nationality. Most came from Cuba or Argentina. The grave-diggers – those exhuming the victims of Francoist death squads – benefited directly. Over the next four years they received 8 million euros to dig up graves. A further 17 million euros were handed out, amongst other things, for work in archives, on oral history projects and to start creating a countrywide map marking the grave sites. Some previously inaccessible archives were also formally opened up. Amongst those watching the debate in parliament was Emilio Silva, who had started the exhumations by digging up his grandfather’s grave in Priaranza. ‘This law is the beginning, not the end, and it is long overdue,’ he said. Only the People’s Party and the separatist Catalan Republican Left party voted against it, the latter because it did not go far enough. In fact, like several of the major compromises reached by the Zapatero government, it ended up angering both sides – who deemed it either outrageous or insufficient.

With so much angry political mud-slinging, the historical
memory debate lacked the subtlety and depth reached in other countries with similarly ghastly pasts. What about individual or collective guilt, for example? Sectarian Spain has no one like the Czech Republic’s Václav Havel prepared to say that the line separating regime collaborators from opponents runs not between individual people, but through them. The Havel theory suggests that all Spaniards were in some way involved in propping up the regime, even those who disliked it. Were police officers automatically collaborators? And judges? Or schoolteachers? And what about journalists or writers who accepted censorship? These questions have not been answered. They have not even been asked.

The strength of the taboo about apportioning individual blame for Francoism became clear in 2008 when the intrepid and controversial investigating magistrate Baltasar Garzón became involved. In October that year he agreed to investigate a complaint brought to his court by several historical memory groups who wanted the courts to help unveil the truth about the past. Garzón wrote a memorable
auto
– the formal document that gave his reasons for taking on the case – arguing that international law obliged him to investigate claims of forced disappearance and crimes against humanity. Such crimes, he stated, were not covered by amnesties. He even named thirty-five senior Francoist officials responsible for the alleged crimes. They included Franco himself and his brother-in-law Ramón Serrano Suñer – who had died just five years earlier. Rather conveniently, all those on the list were dead.

Garzón’s
auto
reads like a manifesto for the historical memory movement. It lays out, line by line, the grievances of those whose relatives were left to rot in anonymous, mass graves after the 18 July 1936 uprising by Franco and his allies against the elected Republican government. ‘The armed uprising of this date was planned and organised with the intention of bringing an end to Spain’s form of government [and] attacking, detaining or physically eliminating people who held positions of responsibility in the higher organs of the state,’ he wrote. Franco and his allies, he argued, had carried out a plan that involved ‘the detention, torture,
forced disappearance, and physical elimination of thousands of people for political and ideological motives and which caused the displacement and exile of thousands of people, both within and outside the country – a state of affairs that continued, to a greater or lesser extent, after the Civil War ended.’

He proposed creating a team of official court investigators. ‘This investigation aims to discover the truth about what happened, and identify the perpetrators with the aim of establishing individual responsibilities and resolving the question of any criminal responsibility if [the individual] has died,’ Garzón said. He was, in short, proposing a trial of Spain’s ghosts – though only, he hastened to add, as a means of finding more of the dead.

In talking about the disappeared, Garzón was delving into a terrain he knew well from his successful use of international human rights law to prosecute Argentine torturers and to have former Chilean dictator Augusto Pinochet arrested. He also wanted to introduce a crucial new concept into Spanish jurisprudence. Garzón was saying that where people had simply been ‘disappeared’ there could be no statute of limitations or amnesty on the crime as it was, effectively, an ongoing kidnapping. ‘The crime, and the effects that derive from that, only ceases with the discovery of the corpses of the disappeared, or when public authorities can offer absolute and accurate information as to their whereabouts,’ Garzón said. ‘Today the whereabouts of many of those detained is still not known, and that is why in this case there is a demand to identify those responsible.’ This was the argument used in Chile to pursue Pinochet’s thugs and sidestep amnesty laws. Crucially, it opened the door to police investigations of the deaths in Spain. And it drove a section of right-wing opinion to apoplectic fury.

Garzón was immediately targeted by a group of far-right lawyers who had set up a pseudo trade union called Manos Limpias to pursue politically motivated cases through the courts. They petitioned Garzón’s fellow judges to declare that he had overstepped his powers with his
auto
on Francoist crimes. In a separate case, he was accused before the Supreme Court of
wrongfully allowing police to eavesdrop defence lawyers in a corruption case involving senior People’s Party officials – the
so-called
Gürtel case, which eventually led to the downfall of the party’s regional prime minister in Valencia, Francisco Camps. In a third case, it was claimed Garzón had failed to declare an interest in a case involving Banco Santander, Spain’s largest bank, which helped finance a conference he was involved in while taking a year’s sabbatical at New York University.

The Falange, which had manned many of Franco’s death squads, made a remarkable – if brief – return to the limelight by formally joining the attempts to prosecute him. Garzón denied all the allegations, but he had made too many enemies (and, quite possibly, too many mistakes) to survive this sustained attack. Many of his fellow judges were envious of his star status, or simply disliked his way of doing things. His penchant for grand gestures had been encouraged and applauded when the targets were popular hate-figures like the drugs clans of Galicia or ETA and its supporters. Few had worried, then, if he was being high-handed. But when he turned his guns on those closer to home, and against both the People’s Party and some deeply entrenched conservative ideas, powerful critics appeared. A growing right-wing bias in the upper echelons of Spain’s highly politicised judiciary also worked against him. The Supreme Court agreed to suspend him in May 2010 while the case against him for his investigation into Francoist crimes (which he had eventually passed down to lower courts in the provinces) was prepared and heard. Garzón was snapped up, in the meantime, by the International Court of Justice at The Hague and, then, by the European Committee for the Prevention of Torture. The so-called
superjuez
was a star everywhere else but Spain.

Somehow it was no surprise to me that his nemesis should come, precisely, as he dared tangle with the explosive affair of historical memory. In a dazzling career Garzón had successfully battled corruption, state-sponsored terror, drugs clans, arms traffickers, international human rights abuses and terrorism itself. But Spain’s Francoist past was, in the end, a tougher opponent. It proved just how long a shadow Franco had cast. Garzón’s defeat
means that, at least for the moment, the golden rule of the
Transición
remains in place. No one must be blamed or punished for what happened while the Generalísimo ruled Spain. Indeed, Franco himself is the only one to blame – as if he had organised the whole thing single-handedly. It is a way to keep Francoism conveniently in the abstract.

Bizarrely, or perhaps not, Spain’s refusal to investigate and punish those involved may be circumvented by an appeal lodged in an Argentine court. Victims have taken a case to an investigating magistrate in Buenos Aires that mirrors the one Garzón successfully brought against Argentine torturers, including navy captain Adolfo Scilingo, in Madrid. Their basic plea to the court is that, as Spain is refusing to investigate, international human rights law obliges courts in other countries to do so instead. Garzón’s prosecution of Scilingo helped push the Argentine courts into finally trying – and often jailing – the military junta’s thugs. It will be fascinating to see what the Argentine courts do with the Spanish case.

The third great point of discord during the Zapatero years was ETA, whose ghostly presence already floated around the train bombing debate. The row that had been waiting to erupt finally blew when ETA called a cease-fire in 2006. Should Spain negotiate, or not? Zapatero was ready to discuss the future of ETA’s prisoners, but not to budge on political matters. Even this much negotiating, however, was denounced as treason by those prepared to throw the dead into the debate. ‘You have decided to change course, betray the dead and allow ETA to recover the ground lost before it was cornered,’ said Rajoy. ETA soon brought the debate to a dramatic close. A bomb planted at Madrid’s shiny new airport building in December 2006 killed two Ecuadorian immigrants, shattering hopes of peace. But the attempt of a few hard-liners to launch a new campaign of violence soon faltered. Spanish police picked up their leaders one by one, and social support in the Basque country itself slipped away. The 2006 cease-fire had raised expectations. Even the normally pro-ETA politicians from the banned Batasuna party wanted the violence to end. It
was not that they were morally opposed to it, but it was by now clear that it simply did not work.