By Toby Dershowitz
(4 January 2017)
After nearly two years without progress, the investigation into whether former Argentine president Cristina Fernandez de Kirchner conspired with Iran to cover up the Islamic Republic’s role in Argentina’s deadliest terrorist attack was at last reopened on Thursday. This has the potential to finally hold Kirchner accountable for the malign activities outlined in the formal complaint that federal prosecutor Alberto Nisman was to present to the Argentine Congress on January 19, 2015. Nisman never was able to present the findings of his investigation, because he was found dead with a bullet in his head the day before he was to appear before the Congress.
Nisman’s exhaustive reports over nearly a decade led Interpol to issue “red notices” (akin to arrest warrants) for high-level Iranian officials for their role in planning the bombing of the AMIA Jewish community center in Buenos Aires in 1994, which killed 85 people and injured hundreds. Nisman’s investigation, which relied on thousands of now-public wiretaps between Argentine and Iranian interlocutors, concluded that then-president Kirchner, then-Foreign Minister Hector Timerman, and several of their allies conducted back-channel negotiations with Tehran aimed at getting the red notices lifted in exchange for increased trade between Iran and Argentina. Kirchner denied the allegations.
This in turn had followed a Memorandum of Understanding (MOU) the Kirchner government negotiated with Iran that she said was aimed at investigating the AMIA bombing jointly with Iran. Nisman and others regarded the MOU as an effort to whitewash Iran’s role in the AMIA bombing. An Argentine court later found the MOU to be unconstitutional.
Following Nisman’s death, judges declined to investigate his formal complaint against Kirchner. But on December 29, 2016, a three-judge panel of the First Chamber of the Federal Court of Cassation, Argentina’s highest appeals court for criminal cases, voted unanimously to grant an appeal by a Jewish community organization known as Delegación de Asociaciones Israelitas Argentinas (DAIA) to reopen the judicial investigation. The DAIA shares a building with the AMIA and was therefore a target of the bombing. The DAIA became the plaintiff in the re-opened case. “The evidence does not allow for a clear dismissal of the possible commission of illicit acts,” Argentina’s official Judicial Information Center said in a statement. An audio recording of Timerman acknowledging Iran’s role in the AMIA bombing helped persuade the court to renew the investigation.
While opening an investigation into Nisman’s complaint is an important step forward, it’s unclear whether Argentina’s judicial system will be able to investigate the case without a high degree of politicized partiality. Argentina’s politics still remain intertwined with its courts, which the World Economic Forum ranked 121st out of 138 countries when it comes to judicial independence.
An example of Argentina’s politicized judiciary can be found in the case’s history. Judge Ariel Lijo, who received the case directly from Nisman a few days before the prosecutor’s death, excused himself from ruling on the complaint shortly afterwards. The judiciary— through a lottery—then assigned the case to Federal Judge Daniel Rafecas. Rafecas, known for his ties to Kirchner, quickly dismissed Nisman’s 300-page complaint against the former president, shunting aside evidence of malign activity presented by the prosecutor. In related cases, Rafecas has been accused of tampering with and distorting court documents and is under investigation for misconduct. Eventually, he was removed from the case. Again through a lottery, the case was returned to Judge Lijo, who is still in charge.
In Argentina, cases are also assigned head prosecutors who serve as investigators. When the First Chamber opened the case, it also reinstated the well-regarded Gerardo Pollicita as head prosecutor. Pollicita was the first to take over the case after Nisman was found dead. He argued that the Nisman complaint against Kirchner, Timerman, and others included “a criminal hypothesis of unusual severity and institutional importance” that merited investigation, giving victims of the AMIA some hope of a fair investigation.
Yet last week witnessed another indication of the challenges in the judiciary. Federal Prosecutor Eduardo Taiano, assigned to investigate Nisman’s suspicious death, received a vicious text message threatening his life and that of his son: “Stop f—ing with that Russian, son of a thousand whores. We are going to f— you and Federico [your son]. Your days are numbered….We’ll do the same thing to you and your son that we did to him.”
The individuals accused by Nisman of conspiring to help the Iranian suspects attain impunity in exchange for increased trade relations also referred to Nisman as “The Russian”—an insinuation about his Jewish origins—according to wiretaps Nisman used as part of his investigation of the alleged cover-up.
Taiano’s son was kidnapped years ago in connection with a case he was leading in which former President Nestor Kirchner and his wife and successor, Cristina Fernandez Kirchner, faced charges.
Such threats and acts of violence, which are not uncommon, create an environment of fear that discourages witnesses from coming forth and impedes impartial justice.
Taiano is not one to be easily swayed, however. He had taken over the case from another prosecutor, Viviana Fein, whom he formally accused of breach of duty, obstruction of justice, failing to adhere to investigative protocol, and other alleged “intentional irregularities.” Such a formal complaint was noteworthy because it came from within the judiciary.
President Mauricio Macri, who took office in early 2016, also made a stand, reversing the course taken by his predecessor, Cristina Kirchner. One of his first acts as president was to announce that he would not challenge in court the decision that declared the MOU unconstitutional.
Macri also called for a “definitive investigation” into Nisman’s death, saying, “It’s hard to believe that Nisman committed suicide. There are too many situations, indications, realities of those hours, those days, that don’t match with a suicide…I want to generate the conditions to allow our justice system to freely investigate what really happened.”
This week, Macri praised the “courage” of the judges who determined the Nisman case should be opened, noting that they were under pressure to abandon it.
Since Nisman started his work as Special Prosecutor in 2004, his investigations have served as roadmaps for law enforcement and policymakers seeking to understand how Iran’s extensive terrorist network can reach unsuspecting communities in Latin America, throughout the Western Hemisphere and around the globe.
In addition to the bombing of the AMIA, Nisman found that Iran’s networks were used in the 2007 plot to attack New York’s John F. Kennedy International Airport, which could have rivaled the attack on the World Trade Center on 9/11 had it not been uncovered in time. Nisman’s investigations revealed how Iran exploits vulnerabilities to set up illicit financial and terrorist networks.
While Alberto Nisman won’t be able to make his case in person, and severe challenges to Argentina’s judicial processes remain, those who engaged in an effort to cover up the role of the Iranian perpetrators of the AMIA bombing will hopefully no longer be able to hide from scrutiny. This is a first step, but an important one in Argentina’s quest for justice.
Toby Dershowitz is Vice President for Government Relations and Strategy at the Foundation for Defense of Democracies.