Alberto Nisman’s death blows lid off Argentina’s tainted justice system

Thousands of people took to the streets of Buenos Aires on Wednesday to participate in a silent march in solidarity with Alberto Nisman, the Argentine prosecutor who accused the government of a massive cover-up last month and turned up dead just before he was supposed to testify before Congress a few days later.

The circumstances of his death were mysterious and remain so. Earlier this month, forensic experts found the DNA of another, as-yet unidentified person in Nisman’s apartment, where he apparently committed suicide on Jan. 18. Last week another federal prosecutor said there were legitimate grounds to investigate Nisman’s allegations that the president and her foreign minister conspired with Iran to protect suspects in the 1994 bombing of a Jewish community center in Buenos Aires.

Since so little is known about the nature of Nisman’s death — and, for that matter, the validity of his accusations against the government — Wednesday’s march has given rise to all manner of insinuation about what, exactly, is motivating demonstrators. The government has accused them of plotting to destabilize the state. And others are calling the march an electoral campaign in a swipe at opposition politicians and government figures who are looking to brand (or rebrand) themselves in the run-up to the presidential election later this year.

At the center of the debate both about the march and what Nisman’s death portends for Argentina is a group of prosecutors who worked alongside Nisman in the Public Ministry and are organizing the demonstrations. They have disavowed any political agenda, even if by marching they’re implicitly criticizing the government.

“We came to this decision because there was no institutional response from the president — not even words of condolence to the family, nor was there a response from the attorney general — no press conference, no day of mourning, no flags at half-staff,” said Carlos Rívolo, a federal prosecutor and an organizer of the march.

Not all his colleagues agree, however. Opinions about the march among prosecutors roughly track along ideological lines with their opinions about the current government.

“Attending the march is hardly professional, hardly ethical,” said Javier de Luca, another prosecutor. “The prosecutors convening this march are sending a message that is unmistakable — it’s anti-government.”  

“There’s no good guy in this story,” said Manuel Garrido, a former anti-corruption prosecutor and now a federal legislator. “It’s not as if all the prosecutors who are organizing this march are independent and thus being attacked by the government. They are variations of the politicization of the justice system.”

Some of Argentina’s federal prosecutors were appointed by a conservative president in the 1990s, before there were concursos, or competitions, for posts in the Public Ministry. They have long been at odds with the current government, which, in addition to being outspokenly leftist, has a reputation for attacking critics. Other prosecutors participating in the march have had run-ins with the government while investigating allegations of its excesses and improprieties. 

Over the past two years, President Cristina Fernández has ramped up pressure on these prosecutors as she has tried to reform the judiciary before leaving office in December. The story of the government’s fraught relationship with the judiciary and the Public Ministry is at the core of the controversy surrounding Alberto Nisman and sheds light on the circumstances of his death.

“For the first few years of a president’s term, justice is slow, but toward the end, corruption cases advance faster,” said Mauricio D’Alessandro, a provincial congressman.

At the start of 2013, Argentina’s paper of record reported that there were 35 open but unresolved cases of alleged corruption percolating in the federal judiciary. These cases implicated 25 current or former government officials.

According to Carlos Rívolo, there were certain liabilities for prosecutors who advanced cases that might threaten the government, like one, which he handled, involving influence-peddling charges against the vice president. The repercussions for prosecutors run the gamut, from facing harsh public recriminations to being suspended or sanctioned by the government’s handpicked attorney general, Alejandra Gils Carbó.

For decades, presidents have strong-armed prosecutors and judges, who, depending on their fealty to the government in power, have often been pliant and obliging. “Federal prosecutors have never really investigated the government,” Garrido said. “For the most part, their work has been defined by stopping investigations into political power” rather than advancing them.

In the spring of 2013, Fernández vowed to “democratize the judiciary,” forcing an ambitious reform bill through Congress. She had legitimate cover and precedent for taking on the judiciary, since it had a reputation for corruption. But her reform included a characteristic mix of token progressive gestures and partisan legerdemain, and the Supreme Court ultimately rejected the measures as unconstitutional.

By then, the president could at least draw support from a new association of sympathetic jurists who called themselves Justicia Legítima. The group consisted of left-leaning magistrates and prosecutors who lamented the discredited state of the judiciary and Public Ministry. Justicia Legítima’s progressive spirit combined with a staunchly pro-government agenda. A particular cause célèbre was a campaign attacking José María Campagnoli, a prosecutor who had begun investigating the alleged corruption of a close business associate of the president and promptly ran afoul of his boss, Gils Carbó. 

“We have always been treated with pressure from the government when we investigate it,” Campagnoli said, but “this administration is defined by its outright hostility toward anyone whom it considers disloyal.” He was briefly suspended and tried for overstepping his authority but was reinstated last summer after a groundswell of outrage over his ouster.

“Until last year, no one in Argentina knew what a prosecutor was or what we did,” said one prosecutor, who requested anonymity to avoid reprisals. “If anyone knows anything now, it’s because of Nisman and Campagnoli.” It is telling that over the past two years, as the country prepares itself for the president’s departure, the dominant political news has concerned the fate of prosecutors leading potentially explosive investigations into the outgoing government.

A few months ago, the government unveiled another reform that hit at the intersection of the justice system and the role of prosecutors in investigating criminal cases. Unlike the judicial reforms of 2013, this one seemed to have a more technocratic aim: to reform the criminal procedural code. Jurists of all ideological stripes have been trying for decades to modernize the code as part of an effort to shift the Argentine legal system away from an inquisitorial function, in which judges took the lead in investigating criminal cases, to an adversarial one that granted wider latitude to prosecutors.

“Under any other circumstances, this would have been a victory for prosecutors because the reform means an expansion of their power,” said the prosecutor requesting anonymity. “But at the moment, it’s a problem because it grants more flexibility and control to the current attorney general,” who would preside over its implementation. Many prosecutors saw Gils Carbó as a proxy for the president and thus distrusted her.

Congress approved part but not all of the law setting this reform in motion, which contained an article that the attorney general interpreted broadly in order to appoint interim prosecutors to scores of newly created posts. On Dec. 31, Gils Carbó named 16 such prosecutors in a move that was roundly condemned as an overreach; the prosecutors she named were aligned with the current government, and some were members of Justicia Legítima.

“The motive could only have been to guarantee impunity after the government eventually relinquishes power,” Campagnoli said.

Mauricio D’Alessandro, who successfully filed an injunction to halt the appointments, said the government was “hiding behind the appearance of a reform” to put loyal prosecutors in charge of criminal investigations. In some cases, these new posts meant that certain federal prosecutors who had tangled with the government would have to share their power with new colleagues. On the same day as the controversial appointments, another prosecutor was stripped of his post. “It was striking,” said Rívolo. Others had recently been demoted.

“It was part of a power struggle on Comodoro Py,” Garrido said, referring to the street where the judiciary is housed.

Nisman, who occupied a privileged place as the special prosecutor tasked with investigating the 1994 bombing, was not directly threatened by the reform, but the thrust of it was not lost on him, according to his colleagues.

“They could take his post away from him with a simple order from the attorney general,” according to Raul Pleé, another prosecutor. “It was not at all unusual for the attorney general to remove a prosecutor from his post and replace him.”

Although Nisman was picked for his post by President Néstor Kirchner, Fernández’s late husband, Nisman began to clash with the government after it signed a memorandum of understanding with Iran in 2013.

“At the end of the year, the president removed the head of a key sector of the Intelligence Secretariat,” Pleé said. That person worked closely with Nisman in the investigation into the 1994 bombing.

Gils Carbó’s appointments only strained matters further. “When Nisman became aware of all this, he understood that the attorney general could take his investigation away from him too,” said Pleé.

Two weeks later, Nisman made public his accusations against the government. Some prosecutors have suggested that in doing so, he may have hoped to stave off his own firing, because it would look bad if the government sacked him after he accused it of malfeasance.

“Nisman was not a hero, but he’s become a martyr,” D’Alessandro said. “His death brought to light a whole host of issues tied to the government’s manipulation of the justice system.”