Federal Judge Daniel Rafecas talks to the Herald in June of last year.
By Sebastián Lacunza
Editor-in-Chief
Editor-in-Chief
Questions are not over: if Judge Rafecas was right, Nisman’s goals must be clarified
The game is not over.
Prosecutor Gerardo Pollicita is likely to appeal the dismissal of the complaint against Cristina Fernández de Kirchner for covering-up the allegedly perpetrators of the 1994 AMIA Jewish community centre bombing. As a result, an Appeals court could take action. We’re talking about the Argentine judiciary — nothing should be ruled out.
If there was a task worth undertaking in the past seven weeks — plagued by political operations and recklessness — it was to keep track of the facts. The work was about maintaining the focus on a debate so often deflected by false information, anecdotes and talking heads from diverse offices who dare comment on legal proceedings (both the alleged AMIA cover-up and the death of the complainant).
Despite its evident murky aspects, prosecutor Nisman’s accusation deserved serious treatment by the courts, more so after his death on January 18. In that regard, the full ratification of the accusation by Prosecutor Pollicita was a healthy step to clarify what the case was about.
Daniel Rafecas is not a pristine judge, free from any kind of political motivation. There may not be a magistrate who can meet that standard in the Argentine judiciary, and even less so in the federal courts. He is, however, a highly respected judge for his rulings in human rights cases and his studies on genocide and the Holocaust. He is also a magistrate who has alienated the Kirchnerites who support Vice-President Amado Boudou in the Ciccone case and some UCR lawmakers who remained loyal to former president Fernando de la Rúa (bribes in the Senate). Since federal judge Rafecas found in 2010 that the alleged appropriation of the pulp mill factory PapelPrensa — whose main shareholders are the Clarín and La Nación holdings — could have links to crimes against humanity committed by the last dictatorship, he won the enmity of others members of the judiciary and politicians. All together they represent a significant threat at the Magistrates Council, where an impeachment process against Rafecas is still open.
If true, Nisman’s allegation should result in the dismissal of the president and incarceration, an outcome that apparently the prosecutor had already considered in a draft writ. Despite its clamorous relevance, there were those who sought to reduce such an accusation to a mere procedural step in courts that should take its regular course, which sounds obvious. Perhaps, it was an analytical attempt to calm things down given the vulnerability of a text that — according to Rafecas — was riddled with “alarming” inconsistencies.
The procedural steps continued and the judge had room to consider Nisman’s speculations. Beyond some unnecessary political appreciations about the president’s consistent struggle (the judge claims) to discover the truth in the AMIA massacre, Rafecas threw out all of the main pillars of the complaint, with the same argumentative line expressed by recognized jurists, and reflected in some media outlets such as the Herald. The lifting of the arrest warrants against five Iranian officials was never a goal sought by the government, as ratified by a former head of the Interpol; the alleged attempt, even if it found grounds, never took place because the agreement with Iran didn’t enter into force; the fact that the reported lobbyists worked on behalf of the Pink House wasn’t backed by the slightest evidence either; and commercial benefits in exchange of a “pact of impunity” did not see the light of day. Rafecas transcribed several paragraphs of Nisman’s writ that constitute a categorical denial of such hypotheses in their own right.
The federal judge brought to light two interesting pieces of news. Firstly, a late journalist’s testimony, considered one of the few elements that went beyond wiretaps. His statement was — in Rafecas’ words — “clearly inconsistent” with what the reporter had written in the Perfil newspaper. Again, it was barely a weak argument based on documents of dubious provenance.
Then a more serious issue: the emergence of a writ drafted by the late AMIA special prosecutor in December where he argued “a diametrically opposite view” to the arguments in his complaint against the president. In this enigmatic plan B, Nisman had signed off on a text that noted “extremely positive considerations of national government state policy (in the AMIA case), from 2004 to the present,” and in which the agreement with Iran was considered an “understandable” initiative. Plan A: “a pact with terrorists.” Plan B: “an understandable consequence” of the Iranian intransigence to deliver its citizens to justice. The text had been written as part of an alternative strategy (seeking the intervention of the UN Security Council to arrest the Iranians) and was kept in the AMIA Special Unit’s offices. It was handed to Rafecas by secretary Soledad Castro and other officials were aware of its existence.
Let us return to the WikiLeaks cables that have exposed Nisman’s close relationship with the US Embassy. One of them, in which the diplomatic delegation criticizes the AMIA prosecutor, states: “Nisman is not the sort to have gone public with the recommendation for Menem’s and others’ arrests without some direction from higher-ups.” (The Embassy was referring to the Kirchners).
If there is no new evidence that completely transforms the complaint and salvages its flagrant contradictions, and if the plan B that came to light in Rafecas’ ruling really existed, a minimum exercise of critical journalism leads to basic questions: For what purpose did Nisman issue such a complaint against the president, foreign minister and others? On behalf of whom did he act? Why did he deceive his ex-wife and interrupt his vacations to file an accusation that was so weak? His death raises two questions that are mutually exclusive: Why did he commit suicide? Who killed him?
@sebalacunza