CHILEAN JUSTICE

Last Thursday, October 23, the Chilean Ambassador to Washington treated the Harvard community to a defense of the Chilean Supreme Court's refusal in October 1979 to extradite three Chilean military officers to the District of Columbia. Small wonder that he should have justified the Court's action, for this decision frustrated an important U.S. legal initiative. It precluted the trial of these officers in the District for their alleged role in the September 1976 car-bombing assassination of Orlando Letelier, a highly vocal Chilean exile with diplomatic status, and Ronni Moffitt, an American citizen riding in the front seat of Mr. Letelier's car when a bomb exploded beneath the steering wheel.

Speaking at the Harvard Faculty Club courtesy of the Pan American Society of New England, Ambassador Jose Barros offered a two-pronged defense. He first reproduced the essence of the Chilean Foreign Ministry's position on the Court's behavior. In refusing the extradition request, Ambassador Barros said, the Chilean Supreme Court behaved as an independent judicial body. Ambassador Barros then provided a desparaging view of the U.S. response to the Court's action. His comments unmistakably characterized official U.S. displeasure as impatient, fundamentally disrespectful of due process, and impolitic.

The first prong of the defense was clearly necessary for the second. Without the claim that the Court behaved like an independent judicial body, Ambassador Barros' pejorative assessment of American behavior would have been difficult to sustain. All things considered, if the Court did not behave properly and independently, perhaps there was good reason for the United States to be displeased.

If, in fact, Ambassador Barros' empirical claim about the Chilean Supreme Court is misleading, we must regard his attack on American action with great skepticism. After all, the circumstance surrounding this matter of extradition are extraordinarily disturbing. Enough evidence has emerged to strongly suggest that the assassination of Letelier and Moffitt was planned and executed with the knowledge and approval of Gen. Pinochet, Chile's chief executive, in much the same way the Col. Qaddafi knows and approves of Libyan-financed terrorist activity in Europe. That feature alone argues that we should not let Ambassador Barros' characterization of the U.S. response to the Chilean Supreme Court's decision as anti-juridicial go unexamined.

Many considerations suggest that Ambassador Barro's portrayal of the Chilean Supreme Court as an independent institution is implausible. The most important of these, is the Chilean judiciary's status under the current regime. A brief review of the Chilean judiciary's history from September 11, 1973, the date of the military coup against the Unidad Popular government, to the formal U.S. request for extradition in September 1978, plainly shows that during these five years the Chilean judiciary led only the most fugitive kind of institutional existence.

The military coup initiated the judiciary's political nullification. Between September 1973 and September 1974, Chile was unconstitutionally under a "state of siege", which the junta's Decree Law No. 5 defined as a "state of war". This definition created a system of military justice in which defendants were routinely sentenced to imprisonment or death without any appeal whatsoever, often on the basis of "evidence" extracted under the most excruciating torture. Military officers with very little or no legal training conducted these trials. Throughout that year, the Chilean Supreme Court refused to supervise the system of military justice in any way.

Indeed, regular justice of any kind hardly existed in Chile. Throughout this year, the Chilean Armed Forces ignored its own military code of justice. It murdered 20,000 Chilean citizens during and after the coup, and interned 35,000 citizens in camps or prisons, a terror which orphaned at least 30,00 children.

Further, from September 1974 to March 1978 the Chilean Armed Forces continued to deprive the Chilean judiciary of any institutional substance. A combination of purges of judicial personnel--particularly among the labor courts--and minor variations in the regime's periodic decrees measured the tempo of the judiciary's life.

From September 1974 to September 1975 a declared "state of siege" maintained war-time military justice. Nor did the subsequent "state of siege in the degree of internal security" change the status quo. Although the regime later created a right of appeal to the courts, Decree Law 1877 (August 12, 1977) nullified this right by stipulating that under a "state of emergency" the regime possessed the power to detain Chilean citizens arbitrarily and suspend appeal to the courts. Until the revocation of the "state of siege" in March 1978 Chile remained under both a "state of siege" and a "state of emergency".

Therefore, when the U.S. Dept. of Justice filed its extradition request in September 1978 Chile's "state of emergency" still governed the regime's judicial processes. Under these conditions, Decree Law 1877 held even minimally defining characteristics of an independent judiciary hostage to the military executive's will. Contrary to the thrust of Ambassador Barros' remarks at the faculty club, it is impossible to regard the Chilean judiciary as an independent institution at the inception of the adjudicatory process which it supervised.

Nor is it likely that the judiciary evolved into an independent institution between September 1978 and September 1979, the month in which the Chief Justice of the Supreme Court wrote the Court's opinion. Such an evolution would have required a rapid transition to democracy; obviously, no such transition occurred.

Because a ruling in favor of extradition would have seriously destabilized the regime, it is far more likely that the Court acted purposively to defend the military regime's interests.

Even though the terms of an earlier agreement between the U.S. and Chilean governments required the Department of Justice to restrict the admission of such evidence, a trial might nevertheless have revealed that Letelier's assassination fit into a larger pattern of regime-sponsored attacks against leading exile figures exporting terror. It might have revealed that in September 1974 the Chilean secret policy struck against Gen. Carlos Prats, the leading constitutionalist military figure in exile. Gen. Prats' appeal within the Chilean military cannot be gauged. However, constitutionalism had worried the junta enough for it to stage anti-constitutionalist show trials in April, 1974. Further, during his exile in Buenos Aires, Gen. Prats had kept in close touch with officers in chile. The general and his wife died when their car blew up in Buenos Aires shortly before Gen. Prats completed his long-awaited memoirs.

A trial might also have revealed that the Chilean secret police had attacked Bernardo Leighton, a founder of the Christian Democratic Party. Leighton commanded immense prestige both in Chile and among the vast exile movement of professional politicians, unionists, former state officials, and former military officers. After the junta learned that Leighton was perhaps close to unifying the exile movement behind a government-in-exile, gunfire on a quiet Rome street badly crippled him and his wife.

Even if this evidence had not emerged, the mere event of a trial would certainly have exposed and mobilized deep divisions within the Chilean military. Unlike, for instance, Franco's Nationalist Forces, the Chilean military did not undergo the intensely unifying experience of fighting and winning a civil war. Instead, it conducted a campaign of indiscriminate terror against an unarmed civilian population. Far from promoting a spartan sense of unity, this experience deeply conflicted with the espirit de corps of an institution which had never performed praitorian functions.

Because the extradition request named Gen. Contreras, the head of the military's secret torture-and-assassination bureaucracy, questioning by officers of the court during his trial would certainly have unearthed much of the military's deep involvement in new, distinctively unmilitary tasks. The possibility of extraordinary discredit to the Chilean military would simply have been too much for most of the Chilean military to tolerate. The spectacle of three high-ranking Chilean military officers on trial in the United States for murder would have generated tremendous pressure within the Chilean Armed Forces to stage a counter-coup against Gen. Pinochet, Gen. Contreras' patron, and begin a transition to democracy.

In short, extradition probably would have toppled the regime, as Ambassador Barros surely knows. No judiciary ever topples a regime, let alone a judiciary as weak as Chile's.

The twentieth century has shown us that a hollow and wholly perfunctory attachment to the procedures of humane government often defines authoritarian regimes. The pseudo-legalistic cant of their officials usually reveals nothing so much as a cynical, even barbaric disregard for the substance of a civilized legal system. Ambassador Barros' attempt to drape the mantle of due process over his regime has confirmed this dismaying truth for us.

Richard M. Valelly is a fifth year graduate student in government and a resident tutor at North House.