"One who shelters a terrorist, is a terrorist"
–President George W. Bush
The upcoming immigration hearing for Luis Posada Carriles, the 78 year-old felon who is a self-confessed co-conspirator responsible for the detonation of a bomb which killed 73 passengers and crew members aboard a Cuban passenger airliner as it flew over Barbadian waters on October 6, 1976, represents a huge political burden for the White House and its deteriorating relations with Latin America. The disposition of the case will now also test the authenticity of the U.S.’s War on Terror, since Posada is responsible for some of the worst pre-9/11 crimes perpetrated in the Western Hemisphere. However, he has never been conclusively tried for being one of the region’s most notorious psychopaths, as the Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) lawyers as well as his detractors continue to cavil over whether he should be accorded the gallows or be granted U.S. citizenship.
Posada originally had admitted to a New York Times reporter of masterminding the 1976 bombing of Cuban Flight 455, in which 73 passengers lost their lives, including a nine-year-old girl, Cuba’s award-winning national fencing team, a young mother-to-be, as well as Guyanese and North Korean travelers. However, in deference to the ultra rightist faction of Miami’s Cuban exile community, Washington has repeatedly offered its protection to this world class criminal from prosecution by U.S. authorities or in any other germane jurisdiction. In doing so, the Bush administration almost has gone out of its way to debase the process of shaping a corpus of applicable international standards against terrorism by protecting those whom others might describe as "terrorists," who are considered to be in good standing by some U.S. authorities. But, as the Washington-based lawyer, Jose Pertierra–who has been retained by Venezuelan authorities to represent their country’s interests in this case–explains "the fight against terrorism cannot be fought à la carte."
A Case Wrought with Painful Irony
Washington has heard continuous international appeals, mainly as a result of Havana and Caracas initiatives, that Posada (who is both a Cuban national and Venezuelan citizen) be brought to justice. Venezuela and the U.S. have an extradition treaty in place dating back to 1922, which obligates the U.S. to immediately extradite any Venezuelan national in this country who has been indicted on murder charges in their home jurisdiction. Under the applicable terms of this bilateral treaty, Venezuela formally applied for Posada’s extradition in May of 2005. Not surprisingly, the Bush administration immediately rebuked this effort by maintaining that the leftist, pro-Castro nature of the Venezuelan government would preclude a fair trial to Posada in a Venezuelan courthouse, and that the defendant would be subject to torture: a self-serving assumption that U.S. prosecutors have never bothered to evidence.
On the domestic front, Washington’s unwillingness to prosecute Posada or facilitate terrorism charges against him brought in other venues, demonstrates that its War on Terror unmistakably involves double standards based on selective indignation. On September 11, 2006 (the anniversary of the World Trade Center attacks), the lack of forward motion by the U.S. Attorney’s office in Miami regarding the resolution of Posada’s status, led to a judge ruling that the mastermind terrorist be released due to a lack of evidence that would establish that he was a world-class terrorist and thus shouldn’t be released into the general public until his status would be resolved.
Since the federal prosecutor failed to mount a well-coordinated case, but mainly relied upon screening films and citing general grounds for detention, Magistrate Norbert Garney was forced to be exceedingly lenient in his ruling, by lodging only a relatively minor charge of illegal entry into the U.S. against Posada. Garney forcefully scolded the prosecution for its failure to produce critical, factual evidence regarding his professed terrorist status in proving that the only prudent path to take was to continue Posada’s detention. To the families of Posada’s scores of victims, the Bush administration’s DOJ’s legal team handling of the case was a caricature of what should have been an orderly and professional disposition.
Magistrate Garney then gave the prosecutors an extension of time to strengthen their case against Posada, whose U.S. citizenship application was simultaneously being heard by the USCIS. The judge’s reasoning for the extension stemmed from an unequivocal belief that Posada was "an admitted terrorist with a history of involvement in terrorist activities," and that releasing him could have "significant national and foreign relations consequences." However, on October 5, the day before the 30th anniversary of the destruction of Cuban Flight 455, the DOJ’s deadline to present adequate evidence to move the trial ahead, came to an end. At this point, the presiding U.S. District Judge Philip Martinez extended a new deadline, February 1, 2007, for the federal prosecution to present its case. In Martinez’s view, Posada has been detained "well beyond" what the U.S. Supreme Court permits. Thus, as of today, at most 30 days remain for the Bush-Gonzales justice to be dispensed.
Amongst the legal community, the DOJ’s lassitude has raised suspicion over whether the U.S. attorneys’ lack of aggressiveness could be attributed to the private biases of Attorney General Gonzales’ in this high profile case, or were they simply trying to gain time by arranging an indefinite trial extension for a self-admitted mass murderer.
What is the U.S. Government Hiding?
There is no reason to scoff at the notion that the U.S. Attorney’s office may be calculatedly sabotaging the Posada case in order to spare the administration an embarrassing outcome brought about by its not applying the full weight of the law against him. Certainly, the executive branch has an interest in shielding the case from widespread publicity. Over the years, Republican administrations on several cases acted to protect Posada, a political icon in Miami. Understandably, the government might not want the U.S. public to know about Posada’s long-standing cooperative relationship with U.S. authorities on various conservative causes, including his role as a CIA agent.
For starters, during the vice-presidency of George Bush Sr., Posada was granted sanctuary in El Salvador where he worked for the U.S. Embassy assisting Contra efforts operating out of neighboring Honduras shortly after escaping for a second time from a Caracas jail on August 18, 1985 where he awaited trial for the destruction of the Cuban airliner. Perhaps only coincidentally, when Posada arrived to San Salvador, Col. Emilio T. Gonzalez, the current Director of the USCIS, was the Assistant Military Attaché in the U.S. Embassy in El Salvador. Conceivably the U.S. Congress would find it appropriate to conduct a hearing investigating any possible conflicts of interests considering that the Director of the USCIS, now Dr. Gonzalez, has substantial leverage over Posada’s hopes of being granted asylum in the U.S. Furthermore, the fact that Dr. Gonzalez is an exiled Cuban national, whose family left Cuba in 1961 shortly after the failed attack on Playa Giron, might also be of interest to Congressional investigators. Dr. Gonzalez’s known intense personal anti-Castro elements and personal friendship with the now detained Posada should be addressed after the Democrats take over Congress.
Moreover, documents in the possession of National Security Archives reveal that Bush Sr., as the CIA director at the time of the downing of Flight 455, was likely to have picked up rumors of Posada’s plan at a time when the explosives were being wired to detonate on board Flight 455. Much of the evidence against Posada has come from declassified FBI and CIA documents, including evidence of Posada’s meeting with another notorious terrorist, such as his accomplice and co-conspirator in Caracas, Orlando Bosch. One report states that "We [Posada and Bosch] are going to hit a Cuban airplane. Orlando has the details." The DOJ even lists Bosch as a "terrorist, unfettered by laws, or human decency, threatening and inflicting violence without regard to the identity of his victims." Revealingly, Bosch today dwells as a free man in Miami after former President Bush Sr. granted him a full pardon from all U.S. charges on July 18, 1990, a decision made at the behest of the arch Castro-basher, former U.S. Ambassador to Venezuela, Otto Reich.
But Posada, whose fate has not yet been determined, is guilty of more than just the destruction of the Cuban flight. The demolition training he received while enrolled in the notorious School of the Americas and thereafter as a CIA proxy, enabled him to mastermind several Cuban hotel bombings while operating under cover in Havana. These attacks were decried around the world as blatant acts of violence against tourists and other civilians, yet the U.S. authorities downplayed their significance at the time.
Posada was also implicated in the highly controversial Operation 40, which, throughout the 1960s, involved conducting sabotage operations and assassination plots in hopes of inciting a civil war in Cuba between pro and con Castro forces. Posada is also suspected of helping Bosch orchestrate the 1976 car bombing of former Chilean Foreign Minister Orlando Letelier and his U.S. assistant, Ronni Moffitt, on Embassy Row in Washington, D.C., in which both lost their lives. Most recently in Panama, Posada was preparing himself to go on trial for attempting to assassinate Castro, while the Cuban president was attending a gathering with more than 2,000 students at the University of Panama in 2000. Extraordinarily enough, former Panamanian President Mireya Moscoso, now residing in Miami, found no problem in pardoning him on August 25, 2004, on the eve of her leaving office, after Posada had been detained with 200 pounds of explosives in his possession. Perhaps Moscoso was so preoccupied with the good life awaiting her in Miami, that the matter did not adequately catch her attention. What we do know is that she was able to block from her conscience the impact of the death of 73 innocent victims–who died in the fatal airplane bombing three decades ago–out of which she was able to find the grounds to free him.
Justified Incredulity from Abroad
The Bush administration may be attempting to placate Miami and ease itself out of the Posada affair by attempting to find him a safe haven outside the U.S. However, to their dismay, upon contacting authorities in Costa Rica, Guatemala, Mexico, Canada, Panama, El Salvador and Honduras, Bush officials were repeatedly told that they would only facilitate Posada’s extradition to Venezuela or Cuba, if such papers were ever filed against him.
Posada’s Miami-based lawyer, Eduardo R. Soto, has consistently fought such third-country deportation efforts on the grounds that he would be treated in a prejudicial manner wherever he would end up, something of a tacit admission of his guilt in itself. Other nations understandably want nothing to do with the man, who is viewed by many as a "monster," and "Latin America’s bin Laden." Meanwhile, the two countries which overwhelmingly have the greatest justification in seeing Posada brought to justice–Cuba and Venezuela–where Posada remains a fugitive from justice, in what has turned out to be an ongoing trial in absentia. However, the Bush administration has systematically ruled out the two as it considers them "rogue" nations where Posada would face "the threat of tortureand therefore could not be returned under the United Nations Convention Against Torture." This is a conclusion that most legal experts would turn their back on.
Cuba has long been awaiting the administration of justice for the mass murder of its nationals on board the Cuban airliner. Havana has found widespread sympathy for the enormous loss and pain suffered by its population over this horrific misdeed. In 1998, Fidel Castro unveiled a monument in Barbados commemorating the passengers aboard the ill-fated flight. Venezuela also continues to vehemently assert its right to try Posada, whose successful escape from a Caracas jail is universally believed to be the result of well-heeled Miami confederates pulling strings and bribing prison guards. The Miami capos are also believed to be responsible for bringing Posada into contact with CIA operatives who signed him up as a useful "can-do" asset, and then again, were said by some to be involved in bringing President Moscoso into the scenario that ended up with her inexplicable pardon of him.
The Cuban Five
The fundamentally biased nature of the current Posada proceedings are highlighted by comparing them to the zealous dynamism displayed by U.S. prosecutors from the same office who were involved in the trial of five Cuban nationals: Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando González and René González. Now all serving lengthy prison terms, these Havana militants were arrested by the FBI in Miami on September 12, 1998 and were accused of espionage and murder. Andrés Gómez, the Director of the pro-Castro Areítodigital magazine, insists: "The federal government lied and is still lying. The Five, as everyone knows, were not in Miami to spy against the government of the United States, but to infiltrate the terrorist organizations of the Cuban-American extreme right-wing, which with the full knowledge and protection of the federal government, plans and directs from that city terrorist actions"
Indeed, the only real "threat" that these men seemed to pose from their monitoring of several extremist Cuban exile groups in Miami like CORU, Alpha 66, Omega 7 and Brothers to the Rescue, all of which were documented for their involvement in attacking Cuban personnel and property, bombing island tourist facilities, and illegally dropping pamphlets over Havana and other of the island’s major urban centers.
Double Standards at Work
The Cuban Five were arrested shortly after alerting Havana officials of flights that were being planned by the Miami-based anti-Castro extremist organization, Brothers to the Rescue. When two planes flown by exile pilots professedly penetrated Cuban airspace, they were shot down by Cuban pilots after warnings by Cuban air patrol officials to reverse their course. The blatant bias of trial judge Joan Lenard against the Cuban Five throughout their Miami proceedings, led to their conviction on all 26 counts, in which the jury deliberated for only four days.
The deportment throughout the proceedings of Judge Lenard, who acted more as a government prosecutor than a crusader for justice, only underscores Washington’s obsessive tactics when it comes to the interpretation of international terrorism in its favor. The fact that both the judge and jury foreman were outspokenly anti-Castro should have led to a dismissal of the indictments or certainly a change of venue. It is true that some Florida wags have been know to mutter, yet with her handling of this case, Judge Lenard proved that she is as fair to justice as Katherine Harris is to a fair vote. Notably, a UN Working Group reviewing the case was able to determine that the trial did not take place in a climate of objectivity and impartiality, which is required in order to conclude on the observance of the standards of a fair trial. The UN report also charges that the Cuban Five were wrongfully held for seventeen months in solitary confinement after their arrest, and that their lawyers were deprived of the opportunity to examine all of the available evidence before the government invoked the Classified Information Protection Act.
As a result, Hernández was sentenced to two consecutive life terms plus fifteen years, Labañino to one life term plus 18 years, Guerrero to one life term plus 10 years, and Fernando González and René González to nineteen and fifteen years respectively. The defense’s argument that Miami-Dade County was "a basic nucleus of anti-Castro Cuban exiles, where the conditions for a fair trial do not exist," was summarily rejected in the pre-trial phase of the adjudication. On August 9, 2005, after Leonard Weinglass, the U.S. attorney for the Cuban Five, had appealed this ruling, a three judge panel of the Court of Appeals issued a 93-page reversal of the initial conviction as well as nullified the sentences. In response to the reversal, the Bush administration and Attorney General Gonzales vehemently pushed for the Solicitor General to appeal the verdict of the three-judge panel’s decision before all twelve judges of the 11th circuit in Atlanta. Its finding, to the surprise of many, in a 10-2 vote, reversed the previous pro-Cuban Five ruling, affirming the initial trial’s convictions and providing at least a temporary victory for the Bush administration and its Miami political backers.
Nevertheless, the defense counsel for the Cuban Five was quick to act and called for the conviction to be remanded back to the three judge panel (now only a two-judge panel because one had since retired) for the adjudication of the nine remaining issues under appeal. As Executive Director of the National Lawyers Guild, Heidi Boghosian explains, "The case of the Five is now in the hands of the very two judges who earlier reviewed this country’s history of crimes against Cuba, and concluded that  it was impossible for these five Cubans to receive a fair trial in Miami." Considering the defense’s previous success with this panel of judges, Boghosian expects that they "will again rectify this travesty of justice."
The case of the Cuban Five is going to haunt the Bush presidency because even those opposed to the Castro regime have raised concern over the harsh treatment and violation of rights exercised upon the Five. The DOJ’s handling of these men has raised a ubiquitous fervor of nationalism profoundly affecting the younger Cuban generation who feel the U.S. has acted on immoral grounds. Considering Castro’s terminal illness, this will be a unifying factor for the Cuban system considering that the Miami-orchestrated case against the Cuban Five will be viewed as a trivial offense on all Cubans. Truly, the concepts of liberty and justice–which attracted thousands of Cubans to the U.S. shores–are not being preached by U.S. and its authorities.
U.S. War on Terror Lacks Consistency and Integrity
While a final decision on the fate of the Cuban Five is expected to be reached in the first half of 2007, the U.S. government’s single-minded hectoring of the Cuban Five–which is propelled by ideology as much as by law–vividly contrasts with the privileged treatment of Posada, whom after being accused of orchestrating the death of 73 innocent individuals, is now leading a protected life while his immigration status is being argued over in an El Paso, Texas, courthouse. Don’t be too startled if Posada is released at any time, by a lightning move on the part of the government since the DOJ has been guided by more of an ideological mission rather than by a faithful administering of the law.
If the U.S. government insists on its sovereign right to preemptively invade other nations to prevent terrorist attacks on its homeland, it might want to consider the illogicality of not attributing the same rights to its neighbor, particularly when that neighbor has repeatedly warned U.S. authorities that the Brothers to the Rescue were routinely violating international law by their repeated over-flights of Cuba.
On September 11, 2001, President Bush announced to the world that "We will make no distinction between the terrorists who committed these acts and those who harbor them." Nevertheless, the U.S. continues to harbor Posada. If he is not brought to justice on this round, the U.S., by its own definition, can be identified as safe-haven for "evil-doers," invalidating its own justifications for conducting its War on Terror. Posada’s El Paso-based lawyer, Felipe D.J. Millan disagrees, and asks "How can you call someone a terrorist who allegedly committed acts on your behalf?" Interestingly, Millan’s own query proves the need to judge Posada in another country such as Venezuela or some neutral third country, where he would have to respond to international charges, that, in effect, if found guilty on them, would make him complicit in criminal acts of terrorism and crimes against humanity. If the U.S. does not facilitate this process, as Michael Avery, the former President of the National Lawyers Guild concluded, "Allowing Posada into the United States and entertaining an asylum request from a confessed terrorist is an open acknowledgement of accomplice liability" Perhaps a viable neutral candidate for a suitable venue to conduct Posada’s trial would be Spain, as the Los Angeles Times editorial board has argued: "Madrid is a credible interlocutor between Washington and Latin America, and Spanish courts have a recent tradition  of aggressively taking on cases of universal jurisdiction."
If the spotlight doesn’t stop focusing on Posada, in all likelihood, the administration could calculatedly announce to the general public–on a slow news day or on the eve of a three-day holiday–that Posada should be allowed to proceed with his citizenship application hoping that the case would disappear from the screen. This holiday season, with all the distractions that it entails, could be a period of suspense for scores of grieving family members seeking justice from Miami-spawned violence. The Bush administration has repeatedly displayed its political savvy in the timing of its archly political releases of controversial documents, other information, or individuals. This can be seen in the announcement of Donald Rumsfeld’s resignation as Secretary of Defense, which was made public on the morning after the Democrats’ triumph in the congressional elections, conveniently distracting the population by masking the Republicans’ near political implosion.
Meanwhile, the lives of the five incarcerated Cubans will continue to be squandered because of the intense ideological and political prejudices that define President Bush and Attorney General Gonzales’ way of formulating U.S. policy when it comes to the Cuban issue, or how it uses its criminal justice system for revenge rather than vindication. By setting an arch terrorist free while simultaneously continuing the draconic sentences against the five Cubans on the most meager of charges–who many would argue should never have been behind bars in the first place–Bush continues to build on the Bush family-Posada relationship, while at the same time scrapping all hopes of rendering U.S. relations towards Venezuela and Cuba more rational and responsive to the best of the U.S. tradition of the pursuit of justice and preserving, in good health, its humanitarian legacy.
BRITTANY BOND is a research associate at the Council on Hemispheric Affairs.
Additional research provided by Magali Devic, Danielle Ryan, and Eytan Starkman