Argentinean Prosecutor Alberto Nisman Challenges Constitutionality of the Argentina-Iran Memorandum of Understanding

As the United States forges ahead with its unpredictable negotiations with Iran over its nuclear program, President Cristina Kirchner of Argentina is doing her best to let the Iranians off the hook for the bombing of the Jewish Community Center in Argentina in 1994.

Even though this was described as the worst act of terrorism to have occurred on the South American continent resulting in the death of 83 individuals, and in spite of overwhelming evidence as to Iran’s complicity, the case has remained unsolved for almost twenty years.

However, earlier this year the Argentinean Government signed an agreement with Iran to establish a “Truth Commission” whose objectives were to find out the truth about the perpetrators of this heinous act. A few days ago, Alberto Nisman, the prosecutor of the case of the bombing of the Jewish headquarters in Buenos Aires (AMIA) requested from the Argentinean judge in charge of the case to declare the Argentina-Iran memorandum of understanding “unconstitutional”.

In trying to form the Commission, the president of Argentina, Cristina Kirchner, pointed out that she is interested “in knowing not only what happened from outside but what happened inside: who undermined the investigation? Why evidence was hidden? ”.

Kirchner noted that one of the goals of the Commission would be to denounce who deviated from the investigation and for what purposes. This, of course, is exceedingly ludicrous as Iran is the country that is the main suspect in having perpetrated the terrorist attack.

To make sense of the logic of Kirchner’s thought she also pointed out that she has always suspected that the “Iranian track” was the result of the “manufacturing of a case that had no legal grounds”.

In reaction, we pointed out in another article  that her statement is particularly astonishing coming from the president since it challenged the credibility of the prosecutor himself, namely, the legitimacy of her country’s own legal system.

We also added that Ms. Kirchner is not really interested in solving the AMIA case but rather in normalizing relations with Iran. Thus, President Kirchner has chosen “to ignore the prosecutor’s report; patch up the entire affair; and completely let the Iranian perpetrators off the hook.

The memorandum of understanding was based on the Iranian pledge to cooperate with the investigation by establishing a “truth commission” composed by Iranian and Argentinean members that would carry out the investigation. ).

Nisman argued that the memorandum is unconstitutional since it violates the Republican form of government (namely the division of powers) since the executive power is interfering with a case that belongs to the realm of the Argentinean judiciary.

According to Nisman the memorandum establishes an international political body that takes away the case from the Argentinean justice system where it truly belongs. The fact that this commission could be put in charge of analyzing the evidence, interrogating the witnesses, as well as the suspect, and even the judges and prosecutors involved with the case sets a bad precedent. It would be a bad precedent precisely because such a commission would assume the functions of the Argentinean judiciary.

Nisman further stated that the memorandum would inevitably lead to the death of the case and the overall investigation. The objectives of the truth commission have not been set. He claims the “Truth Commission” that the memorandum establishes is highly problematic since such a commission would include two Iranian jurists. Such a step would give the suspect, namely Iran, powers and legal authority that no suspect has had in any decent modern court.

In addition, Iran has refused to cooperate with the investigation and even after the Memorandum was signed did not provide any information.

Nisman’s defense of the principle of judicial independence and the need to respect it is timely and necessary for a number of reasons.

President Kirchner has sought to bypass the judicial process in Argentina that already indicted Iran. She chooses to do this by dismissing the evidence against Iran in the AMIA case.  Though this is very serious there is another element as well. She also holds a view of executive-judiciary relations that is against the spirit of the Argentine Constitution.

Ms. Kirchner has repeatedly pointed out, not without annoyance, “the executive and legislative powers are subjected to republican control, while the judiciary enjoys “corporate protection”. According to Kirchner Argentinean judges are the “last link of the decision making process”, while executive orders and laws passed by Congress are subject to review”. “Decisions by the Judiciary cannot be reviewed by anybody because judges protect themselves all the time”.

This curious comment seems to reflect that President Kirchner has a serious problem with republican rule and the very essence of the principle of separation of powers. I agree that the Argentinean judiciary still suffers from deficiencies but Kirchner’s perverted conception goes in the exact opposite direction.

If judges protect themselves, politicians don’t? At the moment, Kirchner’s own vice president is suspected of corruption and is being protected by his buddies including the president herself. Argentina also has a long and persistent history of political corruption and impunity. Ironically, the political system has systematically tried to interfere in the judiciary. That was true under many presidents including the Kirchners.

Yet, President Kirchner proposed the “democratization of the judiciary” by having the Council of the Judiciary, which is the body responsible for selecting candidates for judicial posts, subjected to elections. However, in Kirchner’s mind these elections do not mean individual elections of judges (a common practice in some states in the United States) but partisan elections of judges.  Unfortunately, this proposal already passed in the Argentinean House of Representatives.

So what is Kirchner’s purpose in violating the constitution of her own country and second guessing the work of Prosecutor Nisman and the judge in charge?

There is a double purpose here. One is to normalize relations with Iran, an issue that needs to be taken very seriously by the United States. The second is to delegitimize Argentina’s own judiciary that Kirchner is so eager to control. This is in keeping with Kirchner’s efforts to undermine freedom of the press, quiet dissent and in general, marshal as much power in her own hands as is possible.