Argentina debates sweeping intelligence reform after prosecutor’s death

One week after the mysterious death of a state prosecutor who had accused the government of a major crime, the president of Argentina, Cristina Fernández de Kirchner, announced one of her government’s most sweeping policy reforms to date. She wants to dissolve the country’s Intelligence Secretariat (SI) and replace it with a new organization. Lawmakers and advocates have been trying for years to overhaul Argentina’s intelligence services but could never buck the entrenched institutional order. Now that the president is involved, the government has called for a special session of Congress to debate her proposal, and a Senate vote is expected Thursday.

Opposition parties, however, have refused to attend hearings on the law and vow to boycott the vote; they have decried the reform effort as the self-serving project of a beleaguered president. “The government is proposing a change in name only,” said Manuel Garrido, a congressman from Buenos Aires. “All the government’s doing is taking attention away from the Alberto Nisman case,” he added, in reference to the dead prosecutor.

Last month Nisman accused the president and her foreign minister of covering up a recent government agreement struck with Iran to protect suspects in a 1994 bombing of a Jewish community center in Buenos Aires. The perpetrators of the attack have never been brought to justice, and state-led investigations have crumbled because judges and prosecutors with close ties to the intelligence community have repeatedly been charged with corruption.

As part of a legal settlement with victims’ families, in 2005 the Argentine government promised to reform a 2001 intelligence law seen, at least in part, as having failed to prevent the improprieties that derailed the earlier investigations. Ironically, it was the 1994 attack that prompted lawmakers to adopt the law. Until then, in contrast to the defense and security sectors, which were at least nominally reformed before, the intelligence community was left unchanged since the years of the military dictatorship decades earlier.

The current reform proposal is politically complex because the thrust of it, however opportunistic for the president, is still much needed, according to intelligence experts. It purports to dismantle an overgrown intelligence apparatus with a checkered history of badgering and extorting federal judges and using its surveillance capabilities to hound political opponents.

“The intelligence services have been used for political espionage, financing of political campaigns and control over the judiciary,” said Marcelo Sain, a former head of Airport Security Police and now a provincial legislator. “There are judges, prosecutors and congressmen who are tied to SIDE” — the former name of the intelligence agency — and are essentially on its payroll, he told a local news outlet.

In 2004 four policemen charged in conjunction with the 1994 attack were acquitted after the investigating judge was found to have paid a substantial bribe to a prosecution witness with money that came from the state intelligence secretariat. Political motivations extending to the then-president are thought to have been behind the payoff.

Under the proposed reform, much of the powers of the old intelligence apparatus will be transferred to a new entity, the Federal Intelligence Agency (AFI). The government says this transfer of power will reduce the size of the intelligence agency and facilitate greater transparency of agency funds, which are notoriously opaque. The linchpin of the reform effort is to bring the intelligence agency’s telephone surveillance division, the Department of Judicial Observation, under the supervision of the public prosecutor’s office. At present, it operates independently within the intelligence services and is subject to a toothless regulatory body in Congress. Over the years this has meant that there has been a “promiscuous relationship between the intelligence community and important sectors of the federal justice system,” said Paula Litvachky, the director of the Justice and Security Program at the Center for Legal and Social Studies (CELS), a human rights group that testified before the Argentine Senate last week.

At the request of a judge, the intelligence agency may participate in federal criminal cases, in effect as an “auxiliary to the justice system,” Litvachky said. The result has been chronic abuse, with two persistent problems above all. One is that the SI plays an outsize role in generating evidence in domestic criminal cases, which should be the job of the public prosecutor’s office in coordination with the police and security services.

The other is that public prosecutors and judges often lack independence as they build their cases. According to the government, Nisman was in league with a rogue faction of the SI that was feeding him intelligence about the alleged deal between Argentina and Iran. The government’s pronouncements on the case have been erratic and defensive but not wholly far-fetched where the intelligence community is concerned. Nisman’s allegations relied on hundreds of tapped phone conversations between figures aligned with Fernández's government and Iranian agents, courtesy of the Department of Judicial Observation.

Drafts of the president’s proposal caused serious concern that the AFI was usurping investigative powers reserved for other government bodies, like the Ministry of Security. The government has slightly modified its initial proposal but failed to allay criticisms. Article 4 of the country’s existing intelligence law, which opens the door to the SI’s participation in criminal cases, remains intact, for instance. And some of the bill’s language allows the AFI to justify its involvement in other criminal cases by invoking “new threats” to public security. These sorts of incursions into criminal investigations by the SI, whether under the aegis of the AFI or the current system, would effectively defang any reform effort, according to CELS.

“From our perspective, AFI should have the fewest possible operational functions,” Litvachky said. “It should oversee the entire intelligence system, but it should only analyze the criminal intelligence gathered by other bodies, not produce its own. 

As it stands, the proposed reform also does little to improve political oversight of intelligence funds.

Fernández’s party is well enough represented in Congress to send the reform law through both chambers before the regular legislative session resumes in March. It’s an unsavory situation: a long-awaited reform proposal is being rushed to a vote before lawmakers can fully vet it, and the opposition has essentially absconded.

“The reform effort is necessary,” said Luis Tibiletti, who, as a former adviser to the president of the Senate Defense Commission, played a role in drafting the 2001 intelligence law, “but it cannot be done in haste, because it takes on new issues that have not been dealt with until now.”

At the end of last year, Fernández named a new head of intelligence, capping growing discord between her and elements of the intelligence community. The careful order that existed until then between the president and the SI came apart in 2013, when the government drafted a memorandum of understanding with Iran to create a truth commission investigating the 1994 bombing. Key Argentine intelligence agents had become close to Israeli and American agents in investigating the 1994 attack, and all were displeased with the government’s seeming rapprochement with Iran.

“The executive observed pretty quickly after the approval of the memorandum in Congress that corruption cases started appearing against the president and vice president,” said Juan Tokatlian, the director of the political science department at the Universidad Torcuato di Tella. These cases were hardly new, but many of them had been languishing until then. “So there’s a conviction in the government that these cases are now being taken up as a part of a reprisal by a faction of the intelligence community with growing ties to judges and prosecutors,” he said.

Fernández leaves office in December, after serving two terms as president.