En Defensa de la Patria:

Legality, Extra Legality, and Illegality in Argentina's Military Junta

Introduction

In his book The Ideological Origins of the Dirty War: Fascism, Populism, and

Dictatorship in Twentieth Century Argentina, Federico Finchelstein makes a very profound

statement: the Argentine Junta was a fascist regime within the clandestine detention centers,

the military was fascist when torturing in ESMA, they were fascists when they disappeared

thousands of people in the Atlantic1. He masterfully traces the ideological and national

origins of the dirty war in Argentina and satisfactorily showcases how the torturers, rapists,

and killers in ESMA or Olimpo can be considered fascists.

This article will frame the repressive and secret apparatus of the Junta dictatorship as

a type of normative structure of domination that can be compared to the ones in Nazi

Germany, Fascist Italy, or Falangista Spain. The purpose of this essay is to offer a description

of the multiple legal structures of power of the military junta. Particularly, analyze how the

rule of law, extra legality, and the illegal repressive system were interconnected to guarantee

the legitimation of the political regime. It will also show how a normative state based on

legality and juridical procedure was still alive and functioning during the dictatorship. This

juridical rule of law was necessary to maintain the predictability of social and economic

relations.

Additionally, the article will show how the repressive apparatus of the junta was

monopolized by illegality and not part of a national doctrine of necessity. It contends that

during the dictatorship there were three orders of dominations cohabitating within the

1
Federico Finchelstein, The Ideological Origins of the Dirty War: Fascism, Populism, and Dictatorship in
Twentieth Century Argentina, Oxford University Press, 2014, pp. 122-153.

1
political system: the normative or legal one embodied by the judiciary, the prerogative or

extra-legal ruled by the Junta, and the parallel illegal one orchestrated by the Armed Forces.

Yet, these systems were deeply interconnected and symbiotic.

What follows is a very first approximation to this thesis; first some theoretical

background will be offered, continuing with a description and analysis of the three orders of

the dictatorship.

Legal, Extra-legal, and Illegal Systems of Domination

At the center of Max Weber´s political work is his theory of legitimate domination.

Weber starts by making a distinction between power and dominance. Power (macht) is the

probability that an actor will be able to realize his own objectives even against the opposition

of others with whom he is in a social relationship 2. Domination (Herrschaft), by contrast,

refers to the cases of power where an actor obeys a specific command issued by another 3.

Acceptance of domination may rest upon a variable of motives, ranging from habit to self-

advantage. However, no stable system of rule is based purely upon either automatic

habituation or upon the appeal to self-interest: its main pillar is belief by subordinates in the

legitimacy of their subordination 4. This transforms sheer domination into authority (legitime

Herrschaft). Legitimacy, then, is the subordinate’s belief that the orders that he or she obeys

are valid. In a legitimate system of authority, the right of a ruler to issue commands to others

and to expect them to obey.

2
Max Weber, Economy and Society, University of California Press, 1978, pp. 61.
3
Ibid, pp. 61-62
4
Ibid, pp. 215

2
 Weber describes three main types of systems of legitimate authority: the traditional,

the charismatic, and the legal-rational. In the latter, legitimacy rests on rational grounds and

on the belief in the inherent legality of enacted rules and the right of those elevated to

authority under these rules to issue commands 5. In a rational-legal domination, compliance is

owed to those issuing commands based on principles of law rather than the personal authority

of the leader. Individuals owe their obedience to an impersonal legal order. Authority in legal

domination, therefore, rests in a system of rationally determined judicial rules. A key

characteristic of legal domination is that officials in power are themselves subject to laws and

must orient their action to an impersonal order of legal rules in their disposition of

commands. More than any other system of domination, Weber believed that legal authority

eliminates arbitrariness in the exercise of power and replaces forms of authority in which

individuals wield power by virtue of status privilege or by physical force

Max Weber identifies legality and the rule of law with the legal-rational type of

domination, but he does not link the exclusive existence of law with that kind of authority. In

fact, law exists anywhere a convention is backed, not simply by diffuse informal sanctions,

but by an individual or a group who has the legitimate capacity and duty to apply sanctions

against transgressors. Legal orders, then, are found in any circumstances in which a

collective assumes the task of applying sanctions against offenders. But in rule of law

systems of domination, law acquires a different role.

Law in this sense enables us to rationally calculate and to establish the necessary

relations of social solidarity in any political organization. This, according to Weber, is the

legitimating function of law. Modern legal domination is legitimate because it operates as an

impersonal anonymous structure of legal procedures and general legal prescriptions, but also
5
Ibid, pp. 217

3
because there is a general belief that the content of those rules is right. Weber intentionally

reflects a tension between the system and belief. He knows legitimacy based only on the idea

of consensus and shared values is insufficient, but he does not identify legitimacy simply

with the coercive force of modern bureaucratic administration and the impersonal norms of

modern law. Obedience, grounded in a belief in legitimacy of an order, is irreducible to

coercion.

Weber was unable to describe how the system of the rule of law relates to a

democratic regime6. In fact, this is the trigger point for Jürgen Habermas. According to him,

Weber´s legal-rational authority as a type of legitimacy requires subjects to believe in its

legality, which means formally correct procedures of law making and law-applying.

Habermas is concerned that Weber´s belief in legitimacy consequently shrinks to a belief in

legality. He continues by stating that simple belief is an inappropriate motivational grounding

for rational-legal domination. Legitimacy is more than that. In the framework of Habermas’

procedural conception of law, legitimacy is dependent on two factors: on the acceptance of

the legal system and of its norms, and on rational acceptability. The latter is only given if the

production of law is realized in a democratic process and based on a discursive process by

which a consensus is established.

Accordingly, the source of legitimacy is based on the democratic process of

generating the law, and this process is an expression of the sovereignty of the people.

Subsequently, the people must have the opportunity to take part in the procedural conception

of law. The substance of rational-legal legitimacy consists in the participation of citizens in

the formulation of legal and constitutional norms. Habermas suggests that a step toward the

legitimation of such procedures is supplied by modern constitutionalism, which potentially

6
Max Weber, “Parliament and Government in a Reconstructed Germany”, 1918, pp. 385-443.

4
institutionalizes rational consensus within legal procedures. For Habermas, the legitimacy of

legality can be found in the procedural communicative rationality built into the democratic

legislative process. Law is only legitimate if it could be accepted by all members of the legal

community in a discursive process of formation of opinion and will. Therefore, the rule of

law cannot be sustained without its democratic component: the people as the author of the

law.

Max Weber never seriously considered the concept of extra legality. It could be said

that for him extra-legal were the commands coming from either traditional or charismatic

types of authorities. Weber was not really interested on the concept of sovereignty, which

probably made him also disregard studying the socio-political implications of the exception.

Nevertheless, Carl Schmitt built on Weber’s notions of legality and legitimacy to develop his

own take and to relate them to sovereignty and extra legality.

Schmitt, just like Habermas, tackles the binary legality and legitimacy by addressing

the inconvenient relationship between democracy and the rule of law. A legal-rational system

of authority founded on completely formal or procedural standards would allow for political

parties that are averse to liberal democracy to formulate and apply anti liberal laws, therefore

jeopardizing the entire system7. Legal procedures cannot adequately secure a political

system’s legitimacy because a regime of robust legal proceduralism is vulnerable to a

perfectly legal means for undermining the very rule of law that proceduralism seeks.

Likewise, law placed at the service of democratically responsive policies of

regulation and distribution necessarily descends into arbitrariness and incoherence. By

asserting these two concerns, Schmitt was referring to the two main contradictory regimes he

found within Weimar Germany: the Rechtsstaat, which was governed by the liberal rule of
7
Like the case of a political party controlling 51% of Parliament and then acquiring an automatic majority.

5
law and parliamentary democracy, and the Sozialstaat, which was governed by an

administrative bureaucratic welfare state.

Schmitt would conclude that recognizing the pre constitutional and extralegal

fundamental values and concrete decisions, to which appeals are directed when the formal

rule of law of a liberal regime is vulnerable, could solve these problems. Then the source of

legitimacy in this type of system is not the law but a homogenous concrete will of a demos

that preexists and takes priority over legal and constitutional arrangements.

For Schmitt no legal order can form a rationally consistent, closed system of norms

generated by a legislature that is separate from the enforcing executive. Therefore, he calls

for a substantive normative point outside the closed circle of legal formalism in the

conviction that only such a point affords a vantage from which one might plausibly evaluate

the respective goals of competing political parties; realizing that parliament does not

represent the people, if it ever did, and only represents corporatists interests. The laws

approved by parliament reflect group lobbying and not the will of the people. Laws, then, are

more like statutory measures echoing individual interests and not the general will.

He then identifies this pre constitutional point as a pre legal substantive norm that he

refers as the political or the exception, by appeal to which the rule of law might be saved

from itself. Already in Political theology, Schmitt claimed that the existence of the state was

proof of its superiority over the validity of the legal norm8. It is the decision on the exception,

on returning to the pre constitutional political substantive point, in times of crisis that

becomes independent and have an autonomous and extra-legal value9. In Legality and

Legitimacy, legal normativism is disintegrated by a decisionistic state generated by massive

8
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, Chicago University Press,
1985, pp12.
9
Ibid, pp. 31

6
political crisis. Legality becomes indeterminate on the advent of emergencies diluting the

integrity of the political. A plebiscitary dictatorship can restore that integrity.

Presidential discretionality, and not parliamentary majority, best captures popular

will. The will of the people is not only crystallized in plebiscites, but also in executive

decrees, which not being a product of negotiations between party interests, end up being

more like laws. The citizens’ obedience to formal legal norm is grounded in obedience to a

very personal and particular authority that renders decisions ex nihilo. This extralegal

substantive norm can provide the legitimacy that the rule of law is, wrongly, perceived to

have achieved. Only the extra legally acting executive can save the modern legal community

from undermining itself by its own legality 10. Legality then becomes the antithesis of

legitimacy for Schmitt.

The plebiscitary elected executive embodies a pre constitutional, empirically

unverifiable, popular will. The Weimar constitution recognizes this fact in Article 48 by

combining the norm and the fact, the legislative and the executive into an exceptional

lawmaker.11

By having already declared that sovereign is the one that decides on the exception,

Schmitt had already rejected constitutionalism and embraced a decisionist notion of

sovereignty12. In times of political crisis, presidential decrees should undermine

parliamentary statute just like the exceptional status of the extraordinary leader should trump

the merely procedurally justified status of parliament. The president can create accomplished

facts in opposition to the ordinary legislature13.

10
Carl Schmitt, Legality and Legitimacy, Duke University Press, 2004, pp 89.
11
Ibid, pp. 71
12
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, Chicago University Press,
1985, pp. 5.
13
Carl Schmitt, Legality and Legitimacy, Duke University Press, 2004, pp. 69-70.

7
 Emergency times call for exceptional measures and the latter must be institutionalized

in an executive free of legal-procedural restrictions. Such legitimate institution must violate

the integrity of the rule of law14. Illegitimate, by contrast, is the legality that allows a political

order to vote its own demise. For Schmitt, then, the grounds for legitimate legal community

are themselves extralegal. Presidential decrees trump parliamentary laws; the permanent

substantive extralegal norm trumps the ever-shifting rule of law formed by the party

garnering the most votes. The legal community’s legitimacy should, according to Schmitt,

not reside in legal formalism but in the substantive preferences of the executive.

Ernst Fraenkel problematized this Schmittian paradox, According to Fraenkel,

totalitarian states, and in his case study Nazi Germany, divide law and its institutional

framework in two areas15. It is the declaration of martial law or a state of emergency that

triggers this separation16. The first area is what he calls the normative state, where the rule of

law is expressed in statutes, court rulings, and the decisions of administrative agencies 17. Its

counterpart is the prerogative state, which in his case study was ruled by the national

socialist party that governed through unlimited arbitrariness and violence unchecked by any

constitutional guarantees18.

Fraenkel first argues that the legal corner stone of all totalitarian or authoritarian

states is a declaration of a state of exception or the instauration of martial law within a

country19. When a state of emergency is declared, it triggers the creation and activation of an

extra-legal area that rules over certain sectors of the state. The prerogative state can only
14
Ibid, pp. 10
15
Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship, Lawbook, 2010, pp. 3 to 6.
16
Ibid, pp. 3
17
Continental legal scholars have considered administrative law as part of the rule of law, while by Anglo-
Saxon and common law specialists see it as contrary to the rule of law. Ernst Fraenkel, The Dual State: A
Contribution to the Theory of Dictatorship, Lawbook, 2010, pp. 65-69
18
Ibid, pp. 6-9 and 46-51.
19
Ibid, pp. 3-6.

8
survive if the state of exception is not lifted. The act that inaugurates the prerogative state is a

declaration of emergency that can be made by either a democratic regime or either, in the

case of a coup d’ etat, by the same authoritarian actors that are taking over. Yet, Fraenkel

makes an important distinction regarding the legitimating force of this declaration. If it was

done by the previous political order, then the future prerogative state is, in a way,

constitutionally grounded20. On the other hand, if martial law is declared by the new

dictatorial regime, then the constitutional break can only be legitimatized extra-

constitutionally. In this case, the prerogative states risks being considered illegal in its

entirety21.

Secondly, Fraenkel’s dual state thesis proposes a “paralegalistic” understanding of the

states of emergency as moments when the rule of law is suspended, and extra-legality is the

norm. The law is never totally suspended. The suspension of the rule of law does not

necessarily mean that all legal codes, statutes, and institutions are interrupted while the

emergency regime is operational. In democratic regimes, after an emergency has been

declared only some constitutional guarantees are affected while the legislative power is still

working, and the judiciary is functioning as usual22. In authoritarian ones, Fraenkel discovers

that the rule of law continues in the application of legal codes and statutes by the judiciary.

The normative state survives in the procedures of civil, commercial, and criminal cases23.

This situation engenders paralegality: the codified normative order of the state divided into

two areas, one legal and the other one extra-legal. The former has a strictly limited

20
Ibid, pp. 45-48.
21
Ibid, pp. 51.
22
For example, the U.S. Constitution has only one emergency provision that suspends the writ of habeas
corpus.
23
Regarding criminal cases, the rule of law does not apply to the typification of political criminals as defined by
Gunther Jakobs.

9
jurisdiction and operates following a rational type of legal order 24. While in the latter,

jurisdictional limits are blurry and porous, and decisions rely on the discretion of the

executive. These two areas can cohabitate in both democratic and authoritarian regimes. In

the first case, the prerogative state is strictly temporary and is supposedly bounded by the

constitution. In the second, it lasts if the lifespan of the dictatorship and it acquires extra-

constitutional powers.

Fraenkel’s dual state model is very helpful at framing the overall normative order of

the Argentina Junta by looking at it as a paralegalistic political order 25. However, the actions,

corresponding to the prerogative state, of the military dictatorship cannot be defined as

strictly extra-legal in their nature. Doing so would be both theoretical and moral mistakes. As

stated before, this essay intends to disclaim the notion that the actions taken by the Junta

were of an extra-legal nature by looking at the normative frameworks that supposedly

legitimated those actions. It is my objective to showcase how the different legal and extra-

legal devices that the military dictatorship used to legitimize their dirty war were illegal.

Oren Gross considers that public officials act extra-legally when they believe that

those actions are necessary for the protection of the nation and the public when facing certain

grave dangers26. In democratic systems, what makes the actions outside the legal order and

24
Fraenkel admits certain discretionality within the normative state, particularly when describing administrative
law. Ibid, pp. 36-38.
25
J. Patrice McSherry adopts a similar framework to Fraenkel’s when defining Operation Condor’s military and
intelligence network of operations as “parallel states” that controlled the lives of their citizens through terror.
Although linked to the formal state through the security apparatus, following McSherry, the parallel state was
designed to work outside the bounds of any legally sanctioned structure and to provide plausible deniability to
political leaders. Moreover, even after the military governments of Condor countries (Argentina, Bolivia,
Brazil, Chile, Paraguay, Peru, and Uruguay) fell during the 1980s, McSherry finds that the parallel states
continued to function. They remained active, for example, by helping to carry out anti-subversive campaigns in
Central America throughout the decade. See J. Patrice McSherry. Predatory States: Operation Condor and
Covert War in Latin America, Rowman & Littlefield Publishers, 2005.

26
Oren Gross, Law in Times Crisis: Emergency Powers in Theory and Practice, Cambridge University Press,
2006, pp. 115.

10
not illegal are their aim at the advancement of public good and that they will be openly and

publicly acknowledged afterwards. Once disclosed, it is up to the constituencies or their

representatives to decide how to respond to those extra-legal measures: to either hold their

authors accountable or to approve and ratify them ex post 27. Two main problems arise here:

what are the possible mechanics of judicial or democratic oversight, and if there are limits to

the type of extra-legal acts that can be done by public officials.

Regarding the latter, John Locke’s theory of prerogative limits the extra-legal

discretionarily of the executive. The prerogative can be used for public safety if it is in

conformity with natural law28. In this sense, Locke allows the executive to violate the

formality of the rule of law by respecting natural law; the substance of the rule of law is

upheld. Additionally, Locke contends that the use of discretionary power must be justified

and evaluated every time, allowing for accountability through popular review29.

In this sense, there would be two main mechanisms of oversight or accountability of

extra-legal actions in democratic regimes: regularization by Parliament or judicial review.

Albert Venn Dicey reaffirms the supremacy of the legislative branch and limits the scope of

extra-legal powers by claiming them not to be unlimited and always open to review by the

judiciary30. Dicey considers that those types of measures are illegal until they are ratified by

ex post Acts of Indemnity, which would allow the legislative branch to legalize the rules

broken by the executive actions to face the crisis 31. These acts of indemnity would either

decriminalize public officials that committed those illegal actions, or they would

retroactively legalize those acts32. Additionally, the reelection of Presidents that have been
27
Ibid, pp.112.
28
John Locke, Second Treatise of Government, Create Space, 2013, paragraph 157.
29
Ibid, paragraph 158.
30
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, Forgotten Books, 2012, pp. 272.
31
Ibid, pp. 272.
32
Ibid, pp. 142.

11
known for using extra-legal or extra constitutional actions might be understood as a

democratic acknowledgment or acceptance of those acts.

Yet, the scenario is quite different when we are dealing with authoritarian or

dictatorial regimes. As it was mentioned before, both democratic regimes and constitutional

dictatorships do not tend to legitimize extra legal actions in an extra constitutional way 33.

However, some, if not most, dictatorships born out of unconstitutional breaks rely on sources

outside of the constitution to legitimize their existence and their normative orders. In this

case, their prerogative state does not act extra legally. Their actions are illegal and extra

constitutional. To offset this deficiency, many of this type of regimes enact new constitutions

or organic laws that legalize the new normative order. This way, the discretionary actions

taken by the regime, which normally are shaped as executive orders or military decrees, are

not taking effect in a completely macro-legal void.

Interestingly, within this type of regimes the normative and prerogative states are also

able to cohabitate. The former consists of the judiciary that is mostly relaying on laws, codes

and statutes that were legislated by the previous constitutional regime and that are still valid.

If the dictatorial authorities pass any laws that reform the previous ones, judges must, and

will, rule according to the new ones. Their “juridical validity and application” is not based on

the de facto enactment of decrees, but on the need to maintain juridical certainty, and the

predictability of civil and commercial acts. Therefore, acts lacking any legal procedural

legitimacy are incorporated into the body of laws, followed by the citizens, and applied by

judges. The acts of the prerogative state, then, acquire a kind of juridical legitimacy. This,

ultimately, reinforces the “legality” of the regime by giving to it a similar kind of juridical

certainty and predictability than the rule of law.

33
For more on this see Clinton Rossiter, Constitutional Dictatorships; Crisis Government in Modern
Democracies, Transaction Publishers, 2002.

12
 This brief theoretical account of the types of normative orders that both democratic

and dictatorial regimes function with, will allow us to analyze the case of the military

dictatorship that ruled Argentina between 1976 and 1983. Denominated by its authorities as

Proceso de Reorganizacion Nacional, National Reorganization Process (NRP), the regime

had three normative orders, or better yet, two corresponding to the normative and prerogative

states, and another one in the shadows that worked as an illegal parallel structure of power.

The Supreme Court and the rest of the judiciary, which recognized the 1853

Constitution as the fundamental law of the country, mainly comprised the normative state.

The Junta embodied the prerogative state, which claimed being legitimated by the state of

emergency declared by the previous constitutional government and by the two organic laws

that it enacted the day of the coup. Lastly, the three branches of the armed forces, army, navy

and air force, presided over a parallel administrative structure that divided the territory of the

country into military active war zones and was in charge of organizing the two main

repressive and coercive elements of the dirty war: the clandestine detention camps and the

task groups.

The three orders of the military dictatorship

The immediate extra-legal origin of the National Reorganization Process is found in

the declaration of a state of emergency. Just like Fraenkel proposed, the imposition of martial

law inaugurated the prerogative state in Argentina in the mid 70s. In February 1975,

Presidential decree N 261 ordered the implementation of Operation Independence in the

13
northwestern province of Tucuman34. The executive decree, which was confirmed and

supported by all ministers and Congress, authorized the military occupation of the province

in order to annihilate the guerrilla uprising, which was ongoing since late 1974 and was led

by the Maoist group ERP. The decree awarded the armed forces ample discretionary powers

when it authorized them to “…execute all necessary military measures to annihilate the

subversive elements acting in the province35.”

This executive order installed a prerogative state in the province of Tucuman

authorized by the President and Congress and implemented by the armed forces. The decree

did not provide for any oversight institution; yet the judiciary acted as the constitutional

controller by accepting multiple habeas corpus actions while Operation Independence was

taking place36. The decree was a constitutional and legal device that authorized the use of

extra-legal actions by both the armed forces and the federal police. Necessity and

discretionality characterized those extra-legal actions that depended, ultimately, on the

prerogative power of the executive, which was transferred to the military in Tucuman. This

province witnessed, since 1975 until the coup d’etat on March 24th, 1976, the cohabitation of

the two orders: the normative and the prerogative. The decree that authorized the military’s

extra-legal actions to vanquish the guerrilla provided them with a framework of legitimacy.

The armed forces considered that their actions were constitutionally legitimated by the decree

and democratically supported by Congress37.

Operation Independence became ultimately pivotal for the future military junta. First,

it provided the experimental grounds for the repression that the armed forces would apply
34
See http://www.memoriaabierta.org.ar/materiales/decreto1975.php
35
See article 1 decree 261.
36
Around 1,000 writs of habeas corpus were presented from February 1975 until October 1975. See
CONADEP, pp. 408.
37
See Maria Seoane and Vicente Muleiro, El Dictador: La historia secreta y publica de Jorge Rafael Videla,
Sudamericana, 2012, pp. 123.

14
nationally after the coup. The decree did not specify a particular guerrilla group as the target

of the military’s actions. Quite the opposite, the decree broadly determined as the objective

of the military operation all subversive elements. This almost extra-legal criminal typification

included not only the members of ERP or other non-state political violent groups, but also

any individual who was considered subversive by the government or the armed forces. As

stated in the Directive of the General Commander of the Army Number 404 of 1975 and the

Final Document of the Military Junta on the War against Subversion and Terrorism of 1983,

subversion was a Marxist psychological and ideological state of mind that attempted against

the national foundation of the country 38. The military, this way, was able to target subjects

that were not members of any guerrilla group or that provided non-armed assistance. Around

2,500 students were disappeared in Tucuman alone during Operation Independence 39. Except

for the so-called ‘vuelos de la muerte”, the armed forces applied in Tucuman all the same

actions that would later apply nationally after 1976.

Secondly, the executive decree 261 plus executive decree 2772 from October 1975,

which nationalized the emergency by requiring the military to do all necessary actions to

annihilate subversion in the entire country, were used by the armed forces as the main

legitimating legal and constitutional devices for both the coup d’ etat of March 1976 and the

subsequent actions taken during the Junta regime. As it appears in the Final Document of the

Military Junta on the War against Subversion and Terrorism of 1983, the junta considered

that both decrees, when authorizing the employment of all necessary measures to annihilate

the subversion, recognized a type of extra constitutional role for the armed forces as
38
See http://anm.derhuman.jus.gov.ar/PDF/Cuaderno4ANM.pdf
http://www.ruinasdigitales.com/revistas/dictadura/Dictadura%20-%20Documento%20Final.pdf . See also
Federico Finchelstein, The Ideological Origins of the Dirty War: Fascism, Populism, and Dictatorship in
Twentieth Century Argentina, Oxford University Press, 2014, pp. 122-153.
39
It is believed that ERP and Montoneros had a maximum of 500 members in the province, not all of them
engaged in armed fight, and the military claimed the killing of 312 guerrillas. See Paul Lewis, Guerrillas and
Generals: the Dirty War in Argentina, Praeger, 2001, pp. 126.

15
guardians of the country’s political and social orders40. The military perceived that to

effectively vanquish the subversive elements from Argentina, an unconstitutional break was

needed to take over and control the state apparatus. Overthrowing the government was just

another necessary measure in the way to fulfill the objectives of the decrees that had been

authorized by both the executive and Congress.

It is worth mentioning that the coup of 76 was not the first one in Argentina’s modern

history and that the Junta considered that it was also acting with some type of legal

legitimation provided by the Supreme Court in 1930 following the military takeover by

General Uriburu. The latter, after seizing power, declared himself President and pledged his

respect for the Constitution and basic laws in force. Even if he disbanded Congress, he did

not dissolve the Supreme Court or intervened the Judiciary. The Court did little to enforce the

rule of law and guarantee the Constitution. Four days after the coup, the Supreme Court

issued an acordada, a resolution regarding the constitutionality of the military government41.

The Court faced a dilemma; if it declared Uriburu’s rule unconstitutional there was no

legal mechanism that would enforce such a decree. Additionally, there was no legal or factual

protection for the justices’ independence or tenure. The Court risk losing any faculties it

might have retained to control the possible excess of the military government. On the other

hand, by upholding Uriburu’s Presidency, it would then legalize, and therefore legitimate

according to the rule of law, an unconstitutional seizure of power and thereby jeopardizing

the entire legal system.

The brief resolute opinion signed by all members declared that “de facto”, the new

government could carry out any of the ends of the democratically elected government and

40
See http://www.bnm.me.gov.ar/giga1/documentos/EL000162.pdf
41
Corte Suprema de la Nacion Argentina, Fallos, Vol. 158, 1930, pp. 291.

16
that it would be recognized as legally valid regardless of the unconstitutionality of its

origin42. The Court stated that Uriburu’s regime should have legal sanction based on

necessity, the armed forces’ role in securing national peace and order, and their purpose of

protecting the citizens’ life, property, and freedom43. The Court basically institutionalized

extra constitutional emergency powers by legitimizing the role of the military as the

guardians of the constitutions and the guarantors of internal peace and order.

Back to March 1976, once the Junta took power two main organic documents were

enacted that would serve as the normative foundations of their power structure. Additionally,

the Junta considered itself exercising full constituting powers through these documents. The

first was the “Basic Objectives”, which announced the goals of the new regime and

reinforced the military’s role as the safe keeper of Argentina’s national ethos as a Christian

country and as the historical guarantor of political sovereignty and social order44. The second

is the NRP’s statute that structured the political organization of the regime 45. In the statute the

armed forces constituted a junta with three members, each representing a branch of the

military, as the supreme organ of the state. The Junta of Commanding Officers was

responsible for accomplishing the basic objectives of the regime and for that it had full

legislative powers. The Junta was also in charge of designating the President as its discretion.

In conjunction with the President, the Junta selected the provincial governors, the Supreme

Court justices, and the members of the Advising Legislative Commission (ALC). Figure 1

details the structure of power of the NRP.

Figure 1: National Reorganization Process. Structures of Power

Decrees 261/75 and 2772/75

42
Ibid.
43
Ibid.
44
See http://www.bnm.me.gov.ar/giga1/documentos/EL000162.pdf
45
See http://www.bnm.me.gov.ar/giga1/documentos/EL000162.pdf

17
 March 24 th 1976
1853 National Constitution Basic Objectives and NRP Statute

Army Navy Air Force

Commanding Officers Junta

President of the Republic

Supreme Court Zone Chiefs

Advising Legislative Ministers Provincial Zone Sub Chiefs Clandestine

Detention Camps
Commission (ALC) Governors
Area Chiefs Task Groups
Mayors

The constituting faculties of both the NRP’s statute and the basic objectives manifest

that the Junta perceived the coup as a (re) foundational moment. Besides not recognizing the

authority of the National Constitution of 1853, neither document even mentioned the

protection of its values or its reestablishment as possible objectives. The decrees, however,

are considered as part of the background that propelled the armed forces to trigger an

unconstitutional break. Following Fraenkel, the junta’s takeover symbolized the extra-

constitutionalization of the prerogative state. Before the coup, the extra legal and

discretionary actions that were authorized with both decrees remained constitutionally

bounded. Both Congress and the judiciary could oversee and control the prerogatives of the

state of emergency. During the NRP, Congress was dissolved, the Supreme Court members

replaced by judges favorable to the junta, and judiciary’s power was restricted. The

unconstitutional break rendered the extra-legal acts, authorized by both decrees, extra

18
constitutional. Therefore, the prerogative state expanded by the Junta’s takeover had no legal

limits and only accepted as a source of legitimation the necessity to protect and advance the

basic objectives that reflected the Argentine national identity as a Christian country.

However, how is it possible to distinguish between both types of prerogatives, the

constitutional one and the extra constitutional? In a nutshell, what are the material

consequences of extra-legal actions that distinguish them before and after the

unconstitutional break? As it was just said, both Congress and the judiciary were fully

capable of overseeing the extra-legal measures taken by the military and authorized by the

executive before the coup. We can see how the judiciary’s oversight functioned very

differently before and after the Junta’s takeover. Between 1973 and October 1975, around

1,089 habeas corpus acts were interceded and only those that counted with an official

detention by the executive were resolved satisfactorily 46. The situation changed a bit with the

nationalization of the state of emergency following decree 2772/75. Since October 1975 until

March 1976, 1,687 habeas corpus actions were presented. Of those only 754 were resolved.

Additionally, by March 1976 the executive power revealed having detained 3,443 people

since the start of Operation Independence 47. Both the judiciary’s actions concerning the writ

of habeas corpus and the executive’s disclosure of those detained without trial during the

state of siege showcase how the extra-legal measures of the military were somehow

contained constitutionally. Yet, the disappearance of 2,500 students in Tucuman and around

1,000 more nationally after October 1975 also prove that governments during states of

emergency are prone to overreach in their actions and commit several abuses.

46
In Tucuman all habeas corpus actions were rejected; yet the executive later disclosed having detained most of
them.
47
CONADEP pp. 408.

19
 After March 24th 1976, judicial oversight was severely restrained because of the

constitutionally unbounded nature of the regime. Since 1976 until 1983 more than 8,335

writs of habeas corpus were presented48. Of them only two cases were resolved, with only

one released and subsequently expelled from the country 49. The Junta never officially

acknowledged the detainment of those that were the object of the writs of habeas corpus. The

lower chambers would either reject most cases or they would reach the Supreme Court where

they would face a ruling stating the political, and therefore non-juridical, nature of the

disappeared50. The judiciary, then, was unable or unwilling to fulfill its role as controller of

the measures taken by the armed forces after the coup. In part the extra-constitutional order

of the regime prevented them from legally acting. To the unresolvable habeas corpus, we

must add the executive’s discretionary power to arrest during a state of siege that continued

to be applied after the coup. The executive power ordered the detention of 5,615 people

between 1976 and 1977. All of them were members of Congress, ministers and officials of

the previous constitutional government, military officials, members of the Peronist and

Radical parties, plus known trade union leaders and journalists 51. Of that amount, around

1,000 of them were guerrilla members that had been detained before the coup52.

It is within the repressive order of the Junta that we witness the prerogative state’s

transition from extra-legality to parallel illegality. Following the RNP’s statute and the basic

objectives, the Junta enacted Law 21,264 that reinstituted the death penalty in Argentina and

48
Ibid, pp. 408.
49
The Supreme Court ruled in the both the Timerman and Moya cases the release of the detained. Only
Timerman was released and given the option to leave Argentina. The executive informed the Court that Moya
was held detained while the state of siege was in effect according to Article 23 of the Constitution.
50
For example the Zamorano case, Fallos 299:142. .
51
CONADEP, pp. 425.
52
CELS, Coloquio: la politica de desaparicion forzada de personas, Paris 31 de enero de 1980, pp. 13.
Available at http://www.cels.org.ar/common/documentos/Elparalelismoglobal.pdf

20
created the War Councils (consejos de guerra)53. The law criminally typified terrorism as any

act that endangered or had the possibility to endanger public transportation, the public safety,

public services, or would involve the use of explosives in any way that the Junta regarded as

threatening to the wellbeing of the country. Anyone convicted of those actions could face the

death penalty. Terrorist acts were also broadened to include any public or private action that

was influenced by Marxist-Leninist thought54. In addition, war councils were set up to trial

any individual suspected of committing those crimes. The councils would follow the

provisions and procedures of military justice code55. Their jurisdiction was made retroactive

to cover acts executed by guerrilla members before the coup. According to the Minister of

the Interior, by 1977 around one third of the 1,000 individuals on trial were under military

jurisdiction56. The war councils never sentenced one of those three hundred detainees57.

Instead, the repressive apparatus of the Junta operated illegally. Next to the

prerogative state there was a para-illegal structure that monopolized the actions of the dirty

war. While the Junta had all the “legal” and extra-legal devices to carry their persecution of

subversion, they decided to make use of similar methods to the ones they employed in

Tucumán. As showed in figure 1, parallel to the structure of government created by the Junta

the three branches of the armed forces (army, navy, and air force) developed an illegal

system of rule that monopolized coercion during the regime. Official deniability and secrecy

characterized the organization. Yet, it was present everywhere within the state apparatus

taken over and controlled by the military58. There was no clear structure of command, or
53
See http://www.boletinoficial.gov.ar/DisplayPdf.aspx?s=01&f=19760326&ph=3&sup=False
54
The communist party and all other left wing political parties were illegalized. See
http://www.boletinoficial.gov.ar/DisplayPdf.aspx?s=01&f=19760326&ph=3&sup=False
55
See http://www.boletinoficial.gov.ar/DisplayPdf.aspx?s=01&f=19760326&ph=3&sup=False
56
CELS, Coloquio: la politica de desaparicion forzada de personas, Paris 31 de enero de 1980, pp. 18.
Available at http://www.cels.org.ar/common/documentos/Elparalelismoglobal.pdf
57
Only two military officials were convicted following the war councils but for corruption acts.
58
Marcos Novaro and Vicente Palermo, La dictadura militar 1976/83, Paidos, 2003, pp. 206.

21
either an organic framework of rules that ordered its actions. 59 In fact, the general structure

was headless with all three branches of the armed forces issuing orders without

intercommunicating and even conflicting with each other.

The three branches of the military divided the country into five Operation Zones,

following the Army’s Directive for the War against Subversion of 197560, under the absolute

control of five generals. Each zone was divided into sub-zones and then into areas 61. Each of

them had chiefs that had absolute control and command over the repression in their

respective jurisdiction. Autonomy was total; chiefs of area had full authority concerning

actions related to the war on subversion. Areas’ jurisdictions were decided on the nearby

areas of military bases. For example, ESMA, which depended on the Navy, had jurisdiction

of the north of the city of Buenos Aires and northern region to the city until the locality of

Pilar the area dependent on the air force base of Don Torcuato started 62. There was a total of

318 areas, each containing a clandestine detention center (CDC) being run by tasks groups

(grupos de tareas), which acted mostly autonomously. Tasks groups had free rein over their

jurisdiction even having authority over the police and the military in uniform 63. They would

be leading the war on subversion by kidnapping anyone they would suspect embodied

subversive elements, take them into the CDCs, torture them, and those that were not freed

within a short time were either disappeared or remained detained until the end of the regime.

59
Ibid, pp. 207-210.
60
See http://www.desaparecidos.org/nuncamas/web/document/militar/40475.htm
61
Marcos Novaro and Vicente Palermo, La dictadura militar 1976/83, Paidos, 2003, pp. 65.
62
CONADEP, pp. 34.
63
Marcos Novaro and Vicente Palermo, La dictadura militar 1976/83, Paidos, 2003, pp. 66 and pp. 206-210.

22
 The existence of this illegal and cover structure of repression parallel to a prerogative

and extralegal order of command, which could also have been used for the same objectives,

reveals that the aims of the Junta were not just annihilating suspect members of guerrilla

groups but also anybody that could be categorized as subversive because of their political

ideology, public opinion, field of study, profession, religion, sexual orientation, social

relations, or even artistic taste. A total depuration of these elements necessarily required a

parallel, and illegal system of violent repression. The wars councils and the use of the death

penalty would not have been effective for the aims of the regime. Public opinion would have

strongly rejected the trial and execution of 30,000 individuals. Lastly, the official and public

eradication of those so-called subversive elements would have not only meant the

international isolation of the country but also the loss of any kind of legitimacy by the Junta.

Nevertheless, the armed forces would have never been able to develop this coercive

structure of power without the deficient role of the judiciary. The Junta arrested all members

23
of the Supreme Court and selected in their place catholic judges that had resigned during the

Peronist government64. Additionally, most federal judges were also arrested and replaced by

new ones favorable to the military. Interestingly, when the new Justices assumed their

functions, they decided to change the oath when swearing into their positions. The oath

formulated by the Junta would have made the justices to swear on the Constitution of 1853 as

long as it did not have a conflict with the NRP statute and the basic objectives. This triggered

the enactment of Law 21,279 by the Junta, which integrated the statute and the basic

objectives into the body of the Constitution. In 1977, the Court ruled the Lockman case that

stated that the statute and the basic objectives were fundamental parts of the constitution

because both were legitimated by the extreme necessity of the circumstances that made the

military take exceptional measures65. With both these normative acts, the Junta tried to give a

constitutional framework to its regime and its system of repression. The military was

counting on the validity of the historical Supreme Court doctrine that had legitimated and

legalized all previous facto governments and their respective laws and actions.

Besides trying to constitutionalize the Junta’s prerogative order, the judiciary also

assisted the repressive structure of the regime by impeding the success of the few legal tools

available for those in search of the disappeared and detained. It was mentioned before that

during the dictatorship more than 8,000 writs of habeas corpus were presented to any judge

in Argentina. Yet, most magistrates would archive or reject the writs. Only 312 of those more

than 8,000 were accepted and four reached the Supreme Court66. None of the habeas corpus

presented for the disappeared were ever resolved and only two for the officially detained

were resolved favorably; although only one was able to be released and then was expelled of

64
Four were previous magistrate, while the fifth was a legal scholar and law professor at the catholic university.
65
Fallos 299:142
66
See http://www.cidh.org/countryrep/Argentina80sp/Cap.6.htm

24
the country. All the cases that reached the Supreme Court were on individuals detained by

the executive power. In four of these cases on habeas corpus that the Court reviewed, it was

ruled that the executive had ordered the detention of those individuals under the powers

vested on article 23 of the Constitution. According to it, during the state of siege the

executive could order the arrest of anyone without a warrant while the emergency was in

effect. The arrest was made on the assumption that the person posed a grave danger for the

country67.

In all cases, except Timerman, the Court ruled that the judiciary was unable to

process the writs of habeas corpus based on the extreme necessity of the context and the

political context of the emergency that made the matter a-juridical 68. Additionally, the Court

stated that it trusted the executive’s discretion when ordering arrests 69. The presentation of

writs of habeas corpus was made even more difficult after the Junta basically prohibited the

habeas corpus in practice when it enacted a new procedural law. Once a writ was presented

in court, the judge had to request the executive if this person had been detained according to

article 23 or not. If that was the case, the process was finished; if that were not the case then

the process would continue. However, the judge could not continue any investigation on the

matter until receiving a reply from the executive. No replies were ever issued, producing an

exponential drop on the interposition of habeas corpus from 1978 until 198370.

The dictatorship’s pressures on the judiciary to refuse writs of habeas corpus seem

logical considering that their structure of repression was both secret and illegal. Still, the

repressive apparatus was protected by the discretionary power of the prerogative state that

permeated into the normative order of the judiciary. Either by the executive’s arbitrary
67
See cases Lockman, Smith, and Zamorano. Fallos, 299:142, and 300: 116.
68
Fallos, 299:142.
69
Ibid.
70
See http://www.cidh.org/countryrep/Argentina80sp/Cap.6.htm

25
decision on informing judges on the location of detainees, or either by the Court’s

recognition of the limits of the rule of law in times of emergency and the supremacy of the

doctrine of necessity. Nevertheless, juridical procedure was still applied within the judiciary

for all other cases except those concerning habeas corpus. Judges still ruled based on the

civil, commercial or criminal codes. The procedural constitutional guarantees of criminal

trials were still in effect and employed. Only those considered political criminals did not

enjoy them. Furthermore, body of laws passed by the Junta, like the Customs Code, were

applied by tribunals. The judiciary was able to work “normally” even with an extra legal, and

illegal structures of power that ruled the socio-political order of Argentina during the

dictatorship.

Concluding Remarks

This preliminary work has tried to raise a few questions regarding the different

operating systems of power that ruled the political order of the military junta between 1976

and 1983 in Argentina. It is a first approximation to try to develop the different types of

authority that cohabitated during this period. It is also a very small first step towards a

critique of the western conception of the rule of law as exclusively a legal-rational type of

domination. Not only in totalitarian states we can find the emergence of a prerogative order

based on extra legality and discretionality. They are also characteristic of both democratic

and authoritarian types of regimes. The difference between the latter two is to be found on

the source of legitimacy. While in the democratic it might depend on the popular or

plebiscitary mandate of the executive; in the dictatorial it might be found on the necessity of

protecting the nation.

26
 In the Argentinean case, the prerogative state was inaugurated within a constitutional

and democratically elected government. The state of siege was declared by the executive but

also confirmed by Congress. The judiciary functioned effectively as its controller. However,

Operation Independence showcase that emergency regimes are difficult if not impossible to

limit. Within the realm of extra legality of the decrees 261 and 2772, we can already see the

prescriptions for an illegal repressive order. Eventually, an unconstitutional break freed the

few reins that the prerogative state had. The Junta legitimated its rule on extra constitutional

grounds. They created the extra-legal devices to win their war on subversion. However, state

repression was monopolized by an illegal and secret structure of power that was not

controlled or limited but that the judiciary protected. In the end, los desaparecidos were

targeted by a democratic order, kidnapped by a prerogative one, and killed by an illegal-

fascist one.

27