This article is based on common sense. not from a partisan reading or interested revisionism. Common sense, which teaches that the Constitution is the cornerstone of the Republic; that the law must be the same for everyone; that justice cannot depend on the emotion of the moment; and that when power departs from the law in the name of a higher cause, it always results to the injury of the nation.
Marguerite Yourcenar said that “the enemy of fanaticism is common sense, but it rarely manages to win the battle”; and George Orwell said: “In times of widespread deception, telling the truth is a revolutionary act.” Both quotes give meaning to this article, which we develop along two axes.
First, the structural symmetry between the way the state exercised power in the 1970s and the way it exercises it today through the justice system. Other, the power of the symbolic as a tool to legitimize this unlimited power.
If we talk about structural symmetry We don’t equate facts or confuse plansS. The state violence of the 1970s with its deadly dimensions, it’s not the same as contemporary legal authority. What we claim is something different: that both have the same matrix of power exercise, based on exceptionalism as a method.
In 1975, Decrees 261, 2770, 2771 and 2772 ordered the armed forces to “destroy subversive actions.” This concept acted as a key to transferring sovereignty from law to necessity. The exception has been normalized: Citing the salvation of the nation, the state allowed itself to deviate from its own legal boundaries.
Four decades later, the exception returned a different grammar. From 2003, when a Supreme Court was reconstituted according to the ruling government, the Simón (2005) and Mazzeo (2007) rulings reintroduced procedures for facts already adjudicated and did not base their legitimacy on strict criminal law. but in a historical morality and in a retroactive reading of international sources. In this sense, Article 118 of the National Constitution was interpreted as if it were a substantive source of crime, which was in blatant contradiction to Article 18. The axis shifted from criminal law to criminal law a form of “enemy criminal law”.
Here it is important to clarify the true meaning of Article 118. Constitutional history shows that its inclusion corresponded to a purely procedural and judicial purpose. Our Constitution copies almost verbatim its predecessor from the United States Constitution, where this clause – the well-known “Definition and Punishment Clause” – had a clear purpose: crimes “against international law” (what we would today call public international law). They were judged not by popular juries, but by technical courtsbecause it was clear that the jury lacked the necessary training to evaluate this type of behavior.
The aim was therefore to ensure professional competence and not to create new categories of crime or to allow retrospective interpretations of punishment. For this reason, no judge can attribute to it a material meaning that it never had, without violating the will of the voter and therefore the principle of legality of Article 18. Transform Article 118 into a generator of retroactive punishment This is a constitutional deviation of extreme institutional gravity.
Federico Morgenstern called this process “Criminal Cover Law”: a system in which the moral denomination The determination of the offense precedes and replaces the court’s presentation of the facts. “Genocider”, “repressor”, “state terrorist” are no longer accusatory hypotheses and become an anticipated social sentence.
Inserted into this logic is a recent statement by Supreme Court Justice Ricardo Lorenzetti, who is credited with saying: “Trials against humanity were a demand of the streets that we judges knew how to listen to.” This sentence is an institutional confession.
Because a judge isn’t there to listen to the streets: he’s there to listen to the Constitution. The judicial power is not the echo of the majorities, but their limit. When a court is guided by public opinion, the decision is no longer an act of reason but a gesture of militancy.
We also have to recognize this in the 1970s The political and military leadership also listened to the social unrest of the time. It was enough to read the newspapers of those years to see a broad consensus on the need to put an end to terrorist violence, spanning parties, unions, the church and social sectors. Just as we warn today about the danger of street-based justice, we must also acknowledge that in the face of extreme violence, this leadership acted under the direct influence of a widespread and urgent popular demand.
We therefore affirm that Argentina today exhibits typical characteristics of a state of opinion in which collective morality is beginning to replace the rule of law. And if a guarantee is lifted for one group, it could be lifted tomorrow for everyone else.
The power of symbols: the prelude to lawless power
When a power wants to act without limits, it rarely begins by changing laws; before it changes the symbols. The symbol deactivates reason and activates emotions. And when emotions dominate, the boundary disappears.
In Argentina, this symbolic action had several milestones. It all begins with the sentence attributed to Néstor Kirchner at the time: “The left gives you privileges.” A concept that covered up the biggest acts of corruption in Argentine history. And corruption is not just about stealing money: It also steals the truth.
In this context, the number 30,000 became the founding myth. Anyone who mentions the official figures, namely 8,753 missing people, is immediately labeled a “denier”.
We want to be clear: there should not have been a single missing person. But something else uses a symbol to replace legality.
This enabled the construction of the figure of the uniformed man as “absolutely evil”: the irredeemable oppressor, the moral enemy of the community. The soldier ceased to be a person and became a moral stereotype. This logic In the end it reached even those who had never taken part in the events of the 1970s.
In this context, the moral inequality between the victims becomes clear. If the person committing violence, even if legitimate, is a soldier, Absolute non-statute applies. When the perpetrator is a terrorist, as in the case of Colonel Argentino del Valle Larrabure, there is silence. For the dominant narrative, this is more than that 17,000 attacks The acts of violence committed by armed organizations are put into perspective, even though they represented the most widespread systematic violence suffered by Argentine society in those years.
The power of the symbol is so great that it can swap places. If we had been told in the 1970s that an organization’s ideologue was responsible for hundreds of deaths, including the Federal Security Superintendence dining room massacre, it would have a subway station (NdR Rodolfo Walsh)or that organic members of the Montoneros would hold elective positions such as representatives, senators or ministers, we would have thought impossible. However, it happened. Not by chance, but as a result of a conscious symbolic reconfiguration.
To measure it, imagine that forty years from now, a drug trafficker like “Guille” Cantero or “Pequeño J” would be honored in a subway station or named Minister of Security. Today it seems unthinkable. And yet, on a different historical scale, this is exactly what happened to many armed groups in the 1970s: they became resigned to the dominant narrative.
Our aim is not to compare different phenomena, but rather to note when History triumphs over historical truth, society loses its moral criteria. And in this vacuum, any violent actor can be transformed into a hero when power decides to step down.
Return to the law, not the past
We write these lines as soldiers, but above all as citizens. We were created to obey the law, not to replace it; To defend institutions, not destroy them. We are not suggesting impunity or denial of responsibility. We suggest something simpler and more demanding: that no power should any longer be placed above the constitution.
- Gabriel D’Amico and Santiago Sinópoli, members of the Security in Democracy Foundation (SEND) led by Horacio Jaunarena
