The Ostrich Looked Up

When Chilean Court of Appeals Judge Juan Guzman Tapia was mulling over the question of Augusto Pinochet's potential mental fitness to stand trial for crimes against humanity, it was the former dictator's own words that led to his indictment for murder. In a 2003 interview with a sympathetic Cuban-American TV reporter, Pinochet snapped, ''What do I have to be sorry for? I have no regrets at all. I have not assassinated anyone. I haven't ordered the killing of anyone."

"That interview was very important for indicting him," said Judge Guzman speaking at UC Berkeley's Doe Library, where the judge announced his retirement on April 25. "I will be very honest; I thought Pinochet was mentally unfit for trial."

But when he learned of the interview, and reread previous depositions, Guzman found the general as sharp as ever. "I compared his phrases and his opinions. That interview made me change my mind to decide he was mentally fit."

It is largely through the efforts of Judge Guzman, arguably now Chile's most famous jurist, that Pinochet is in his current legal bind. It was Guzman who indicted the general in 2000 and 2004 for his guiding role in both the Caravan of Death and Operation Condor. The 1973 Caravan of Death involved an officially sanctioned 12-man death squad that roamed Chile in a Puma helicopter killing scores of opponents. Operation Condor was a coordinated campaign in the 1970s by six nation Latin American juntas to track down and kill socialists and other opponents of the military regimes.

"[Pinochet's] competency in all crimes, all important crimes has been absolutely established," stated Judge Guzman. "I am hopeful that the Supreme Court will maintain the lifting of his immunity, but the Supreme Court is not apart from politics." Guzman warned that some conservative jurists in Chile's highest court might still block prosecution by restoring the former dictator's immunity that had been stripped in May 2004. Judge Guzman said a decision on that case, Operation Condor, is expected from the Chilean Supreme Court "in a number of days."

Judge Guzman's initial recollection doubting the general's trial-worthiness at Berkeley was a typically self-deprecating detail that marked this honest and deeply human jurist. In an hour and a half of nuanced discussion, presentation and reminiscence, Judge Guzman -- who officially filed his retirement papers that same day -- talked about his unanticipated role in the prosecution of Augusto Pinochet, the state of reconciliation and justice in Chile, the role of international opinion and the lack of co-operation he has received from the United States government.

Judge Guzman described four stages in Chile's search for justice and reconciliation. First came the "Complete Blindness" and absolute denial of the regime between 1973 and 1978, the era of DINA (the Chilean secret service), death and disappearances. Then from 1978 to 1990, "The Total Silence," the period of amnesty for the military where all human rights complaints were "immediately archived." The period 1990-'98 marked that of "Justice to the Extent Possible," in which the first prosecutions of DINA agents were possible, but also where Pinochet threatened to end the rule of law. As Guzman put it, "the Puma helicopter continued to roar."

Finally, since 1998 Judge Guzman says Chile has reached a stage where "The Institutions Are Working." He indicted Pinochet in 2000 and 2001 for the Caravan of Death and in 2004 for Operation Condor and has handed down indictments of several other Pinochet-era junta officials.

It was not always thus. In 1998 when Gen. Pinochet was arrested and held in the United Kingdom for extradition to Spain for the disappearance of Spanish citizens, torture and genocide, Chile argued against the extradition because the country had its own case against the general. Judge Guzman, then a relatively anonymous Court of Appeals judge, was appointed by lottery to investigate, indict and try the case. Many in Chile and around the world had little faith in Guzman, then seen as a relatively conservative judge, and saw his case as a face-saving way for Chile to rescue the general. "That is why the Supreme Court was happy when I was appointed," said Judge Guzman.

Guzman described himself then as part of an "ostrich" class of judges. Some judges "honestly" supported Pinochet; others were careerists who backed him. Few opposed him and most, like Guzman, chose not to see the regime's ills. But over time, and as his investigations carried him deeper into the atrocities of the regime, Guzman pulled his head out of the sand. At first he disdained the international campaign to extradite Pinochet to Spain. Now he says, "The media and public opinion is a good form of pressure. I think it helped enormously. At the beginning I did not say that. Today I think the judicial fight in England was very important for this case."

Judge Guzman's work has stirred enmity, praise and controversy at home and abroad. He noted the very different reactions from people in Chile in wealthy and poor neighborhoods, when he is recognized. "In high and middle-class neighborhoods you see all kinds of hand signals," said Guzman wryly, but "poor people are very happy there is more equality before the law." He still travels with two bodyguards, pared down from the dozen who used to protect him. Judge Guzman, of course, lightly implied that he really brought two bodyguards along to Berkeley so they could get some vacation time in.

Guzman says he knows there is still Supreme Court opposition to successfully prosecuting Pinochet. But he also said there are human rights tribunals in Costa Rica and the Hague. "I think the people who are suffering will continue to fight. Even retired judges will continue the fight," said Guzman, with a smile, and got a standing ovation.

The last question of the evening came in Spanish. Guzman was asked if the Supreme Court was waiting for Pinochet to either die or become senile, to ensure the case never came to court. The judge cocked his head, leaned over the podium, and let out a big sigh. "Now it is difficult to stop this. People know too much. The world knows too much. It is too late to declare him senile."

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