On May 4, 2006, in a bar in the Basque Country called Bar Faisán (Bar Pheasant), a policeman alerted a member of ETA's extortion network about the preparation of a police roundup against the organization. In the present investigation of the case, the evidence appearing in the judge's writ is convincing in this respect. However, his conclusion - that whoever gave the tip-off, and his chiefs, including the general director of the police, were committing a crime of collaboration with ETA - is much more questionable.
Though other reasons have been insinuated (protection of spies infiltrated into ETA or the easing of more important operations), the evidence most convincingly points to a government attempt not to give ETA a pretext for breaking off the peace-negotiation process begun in March of that year, which in May was going through critical moments. It seems to have been a question of choosing between the obvious risks associated with the unusual methods employed, and those of a breakdown of the peace process, which the government considered feasible: a dilemma of a political nature.
It is arguable that what was decided was not the cancellation but the postponement of an operation that in any case was carried out a little later, although it is not true that this postponement was entirely without negative effects: the possibility of destroying evidence, for example. But the evaluation of this risk is also a political consideration, not a legal one. And in the nature of things, judges apply the law in disregard of political considerations.
But they must do this in a responsible way. Could the courts have acted in another manner, than by putting the police officers on trial? They could indeed, and surely ought to have done so, in the light of a Supreme Court ruling which, at the end of 2006, ordered the shelving of the provocative lawsuit filed by the far-right "union" Manos Limpias against Prime Minister Zapatero and his government, for having authorized the meeting of the Basque Socialist leaders Patxi López and Rodolfo Ares with leaders of Batasuna in July of that year. The ruling considered it "an abuse of the Constitution, that anyone might attempt, by means of a legal action under the Penal Code, to correct the direction of the government's domestic or foreign policy."
To attempt to obtain a withdrawal of ETA was a responsibility of the government, the judgment of which depends on the parliament, which authorized the peace negotiations in a vote. We now know that the government's perception of the terrorists' readiness to lay down their arms was a mistaken one, and that a further mistake was the shoddy procedure used to avoid the breakdown of negotiations, which ETA had repeatedly threatened. But it is absurd to consider that an attempt to gain time in this bungling manner amounts to committing a crime - and precisely a crime as serious as that of collaboration with a terrorist group.