Guest post by Cait
“Prosecutor De Luca had a job to do and he did it.”
—María Laura Garrigós de Rébori, head of the Argentina’s Criminal Appeals Court and president of Justicia Legitima (Legitimate Justice)
As widely anticipated, on April 20 Javier De Luca, a prosecutor in Argentina’s highest criminal court, dismissed the late Alberto Nisman’s criminal complaint against Argentine president Cristina Fernández de Kirchner, her foreign minister Héctor Timerman, Jorge “Yussef” Khalil, Luis D’Elía, Fernando Esteche, and others for conspiring with Iran to cover up its role in the 1994 bombing of the AMIA Jewish community centre in Buenos Aires. Eighty-five people died in the attack.
Nisman, a special prosecutor recognized for his expertise on Iran’s penetration of Latin America, was found dead on January 18 of a bullet wound to the head, just hours before he was to have testified before a special committee of the Chamber of Deputies.
Part, but by no means all, of Nisman’s nearly 300-page complaint focused on the Memorandum of Understanding signed between Argentina and Iran in 2013. The MoU set up a “Truth Commission,” ostensibly to probe the bombing. In 2014, Nisman and DAIA (the organization representing Argentina’s Jewish community) successfully challenged the constitutionality of the MoU in the Buenos Aires federal court. The Kirchner government’s appeal of that decision is expected to go to a higher court within days.
That appeal is perhaps why De Luca’s ruling focused on the MoU. No crime could have been committed, he wrote, because the Argentine Congress ratified the MoU: “The Legislative Branch, in exercise of its competence, cannot commit a crime.”
De Luca is one of hundreds of judges, prosecutors, defense attorneys, ministry of justice bureaucrats, university rectors, professors, academics, and other Kirchner loyalists affiliated with the pro-government grouping Justicia Legitima.
By 2012-2013, Argentina ranked 133 of 147 countries on a scale of judicial independence published by the World Economic Forum. Several corruption investigations were threatening prominent Kirchnerites. When the Báez case implicated the president – and her predecessor and late husband Néstor Kirchner – her attorney general, Alejandra Gils Carbó, suspended the prosecutor for exceeding his jurisdiction. Earlier, the courts had issued a series of injunctions against the president’s efforts to break up the opposition media group Clarín and had been warned by the justice minister that further injunctions would make them “guilty of rebellion.”
Towards the end of 2012, three associations representing judges and magistrates published an open letter decrying the executive branch’s attempts to undermine the independence of the courts. Gils Carbó responded with her own open letter: the government wanted merely to “democratize” justice and to that end was establishing Justicia Legitima.
After Nisman’s death, Argentine news portal Infobae released 40,000 court-authorized wiretaps that formed part of Nisman’s investigation. The day De Luca ruled against pursuing Nisman’s criminal complaint, Infobae posted four new wiretaps, covering January 14 to January 20.
Two brief January 14 excerpts highlight the reactions of three of the accused – Khalil, D’Elía and Esteche – on the day Nisman went public. In one, an obviously agitated Khalil calls D’Elía to tell him, “I’m watching the news … I’m beside myself, fucked-up, about the news I’m hearing …” A calm D’Elía says, “Yes, shocking, isn’t it. A few sentences later, D’Elía tells Khalil that on orders from “the Presidency” they are to “keep quiet.” Khalil ends the conversation with, “Luis, listen to me. We’re not talking about this any more by phone.”
In another, between Esteche and Khalil and characterized by a lot of swearing, Esteche tells Khalil, “They want you to keep your mouth shut.” To which Khalil says, “Yes, I’m going to keep my mouth shut.”
In an April 21 interview with Radio Mitre, Germán Moldes, the prosecutor who successfully appealed a lower court’s dismissal of Nisman’s criminal complaint, said, “All [Justicia Legitima] cares about is putting an end to Nisman’s complaint – the legal issues hold no importance.” Moldes had earlier reminded listeners that he had warned that the system of assigning prosecutors by turns would guarantee that that De Luca would get the case.
On April 25, as if confirming Moldes’s warning that “many within the justice system are afraid of the government, because they see that it will go to any lengths,” Justicia Legitima prosecutor Juan Pedro Zoni insinuated that Nisman’s US bank account holds the proceeds of money laundering. By Zoni’s own admission, he has no evidence.
Kirchner’s effort to “democratize” the justice system is not without obstacles. Her government won a recent and contentious pre-election vote on changes to the criminal law that will give the executive a greater say in the disposition of cases, but her efforts to bring the courts to heel still meet with some resistance. The day after De Luca dismissed Nisman’s criminal complaint, the Argentine Supreme Court unanimously rejected Kirchner’s bid to name new associate justices to the court without the constitutionally required two-thirds majority vote of the Senate.
It’s tempting to see Justicia Legitima as just another manifestation of the Bolivarismo that has swept Venezuela, Bolivia, Ecuador, and increasingly Brazil. As numerous Argentine news articles and op-ed pieces have commented over the years, however, much of Kirchner’s strategy and tactics originated with the late University of Essex post-Marxist and post-modernist professor Ernesto Laclau, for whom:
“The representatives of the people must not only comply with the people’s mandate but must model the people’s will,” for “sometimes the people are weak and neither know how to fight, nor have the strength to fight for their interests, and therefore the leader’s task is to create the conditions for the people to triumph. And this is done without consultation, because it must be done so, because history demands it…”
—Tomas Abraham, El Perfil, October 21, 2012
Sources in Spanish:
Nisman Wiretap Archive: http://www.infobae.com/2015/03/01/1671562-todas-las-escuchas-la-causa-nisman-el-presunto-encubrimiento-del-atentado-la-amia
Wiretaps for January 24-20: http://www.infobae.com/2015/04/20/1723443-tras-conocerse-la-denuncia-nisman-el-gobierno-les-pidio-los-involucrados-que-hagan-silencio
Diario Digital de Santa Fe http://notife.com, El Clarín www.clarin.com, El Perfil www.perfil.com, Infobae www.infobae.com, La Nación www.lanacion.co.ar, Radio Jai96.3 http://www.radiojai.com.ar, El Tiempo http://tiempo.infonews.com, Radio Cooperativa http://radiocooperative.com.ar
Official Justicia Legitima links: http://justicialegitima.org/, https://es-la.facebook.com/JusticiaLegitima, https://twitter.com/just_legitima
Unofficial Justicia Legitima blog: http://xunajusticialegitima.blogspot.ca/
Sources in English:
Summary of the January 14-20 wiretaps: http://albertonisman.org/update-moldess-petition-denied-stiusso-flees-new-wiretaps/
Douglas Farah http://www.strategycenter.net/docLib/20141018_Farah_LookingGlass_1014.pdf, Interpress News Agency www.ipsnews.net, Insight Crime www.insightcrime.org, MercoPress http://en.mercopress.com, Buenos Aires Herald: www.buenosairesherald.com, Washington Post www.washingtonpost.com, Business Insider www.businessinsider.com
