An individual, Livraga, is arrested on a day when the ordinary rule of law is in effect. He is not formally accused of anything during the arrest, but this in itself does not yet constitute a crime. They do rough him up a bit; let’s say we forget that part.
The person who arrests him is a civil servant, the Chief of Police of the Province. It is true that this civil servant is, additionally, a lieutenant colonel; but, for the purposes of this case, it is as though he isn’t; he does not arrest him in his capacity as a lieutenant colonel, but as a civil servant under the authority of the Governance Ministry of the Province.
While detained, Livraga of course does not commit any crimes. That day—like every day—ends at twelve o’clock at night. The following day (it does not matter that hardly thirty-two minutes have gone by, it is already the following day, June 10), a law is instated—martial law. This law is put into effect on June 10. Livraga, imprisoned since the previous day, cannot violate it. It is as though this law does not exist for Livraga, and Livraga does not exist for it; they are spheres that do not make contact; whatever is done to him and whatever punishment is inflicted upon him in the name of this law will be a crime. Livraga exists in the penal realm that precedes this law; he cannot be judged or punished except according to the criminal code that was in effect at the time of his arrest, which entitles him to guarantees, the right to defense, an impartial judge, due process.
Now a man enters the picture. He is the same man as before, the civil servant, the Chief of Police who has undergone a Doctor Jekyll and Mr. Hyde kind of transformation and appears in the form of a military authority; his rank of lieutenant colonel—which earlier was insignificant—now serves him well. This man cannot be unaware that he, a civilian, has arrested Livraga, a civilian, and that their interactions are entirely frozen on this plane; that he has arrested Livraga at a time governed by civil law, and can only deal with him on this plane; and that any transgression he commits regarding this clear rule will have to be judged on that same, unabandonable plane—that is to say, will have to be judged by a civil judge. Because this time of civil relations between authorities and mere citizens does not expire when a revolution hits; at most, civil rule underlies military rule: one can be superimposed on the other, but they cannot merge. This civil servant cannot act as a military authority toward someone he has arrested in his role as a civil servant. But he does. He orders for him to be killed. But it is clear that when he acts, when he sends Livraga to be killed, he continues acting like a civil servant, even though he believes the opposite to be the case, because that is the only way he has of relating to this detainee. If he commits a criminal offense within this relationship, he absolutely must be judged as a civil servant. What he orders is not an execution; it is a murder.
To get a clearer picture of things, let’s suppose that during this revolution-inspired interval of metamorphosis, this civil-servant-cum-military-authority takes advantage of the situation to commit some kind of crime, to rob a bank or murder a creditor. Would he then be judged by the military justice system? It seems clear to me that he wouldn’t. His dual nature as a civil servant and military authority does not prevent him from committing a crime according to the penal code and correspondingly being tried under this very code.
Now let’s suppose the opposite. Let’s suppose that the mere instatement of martial law gives the chief of police the unchecked authority over all persons previously detained in precincts, etc., that Fernández Suárez exercised over Livraga. This man, then, can murder all of the prisoners in his custody, and later—if the issue is raised—be “judged” by a military court, that is, by his colleagues and comrades-in-arms involved in the same splinter groups and possibly guilty of similar exploits.
Isn’t that how it happened? Did Lieutenant Colonel Abraham González, the military judge, penalize Lieutenant Colonel Fernández Suárez or even disclose any of the results of this “trial”?
I want somebody to tell me what the difference is between this conception of justice and the one the Nazi gas chambers created.