The first year anniversary of Luis Posada Carriles’ detention by the Bush Administration was the 17th of May. At first glance, we might view this as a cause for celebration: that a notorious international terrorist, a man known as the Osama Bin Laden of Latin America, accused of downing a passenger plane with 73 passengers on board has been caught and is in jail, presumably to await prosecution for his crimes. Yet the Bush Administration did not charge Posada Carriles with terrorism, nor has it prosecuted Venezuela’s request for his extradition-a request that has been pending since June of last year.
The only charge brought against Posada Carriles by the Bush Administration is a mere immigration infraction: i.e., entry into the United States without inspection: an infraction whose maximum penalty is removal from the United States. The Bush Administration used the immigration case against Posada to spin a tall-tale: to try and fool people into believing that the U.S. takes the Posada case seriously and to give the appearance that the wheels of justice are grinding along, when in fact the White House is simply using the immigration case as the prop with which to stonewall the prosecution of this international terrorist.
Posada Carriles stands indicted in Venezuela for 73 counts of first degree murder in relation to the downing of a passenger plane on October 6, 1976. At the time, it was worst act on terrorism perpetrated on a civilian airliner.
Most of the bodies recovered from the wreckage were too grotesquely disfigured to be identified by their family members. The forensic report performed by the coroner describes the condition of the nine year old Guyanese girl whose remains were recovered from the downed aircraft: “Body of a girl around 9 years of age . . . . Brain missing, only facial bones, scalp and hair remaining. Lungs and heart destroyed. Liver and intestines shattered. Buttocks missing on right lower limb. Compound fracture of tibia and fibula . . . ” None of the 73 passengers aboard the plane survived.
Posada Carriles was tried in Venezuela for first degree murder in relation to the downing of the plane, but before the Court could render a verdict, he escaped from prison with the help of tens of thousands of dollars from extremist groups in Miami. He continued his campaign of terror from his lair in Central America, dispatching terrorists to Cuba to set bombs in Havana’s finest hotels and restaurants, killing an Italian tourist and wounding several others. He was convicted in Panama for trying to blow up an auditorium full of students at the University in 2000. He was pardoned by then President Mireya Moscoso, in apparent violation of Panamanian law, and schemed for way to legally return to Miami, where his three accomplices who were also pardoned had recently received a heroe’s welcome.
Under oath, Posada told the Department of Homeland Security (DHS) and the Immigration Court that he illegally entered the United States in March of last year through the Texas border with the help of a coyote. That is not true. According to FBI documents presented in federal district court in Miami last month in relation to the arms case brought against his long time friend and financial benefactor, Santiago Alvarez, Posada was brought to the United States in March of 2005 aboard a shrimp boat called the Santrina owned by Alvarez. Four other Miami Cubans helped Posada to come to U.S. shores aboard the Santrina.
It is a serious felony to smuggle anyone into the United States, but if the person smuggled is a terrorist the penalties could include as much as thirty-five years in prison. The United States has not charged anyone with helping to smuggle Posada Carriles into this country. He sacrificed his credibility in order to cover for his friends.
For weeks, Posada lived openly in Miami, even going shopping at the mall. The United States claimed that it had no information as to his whereabouts, yet the Application for Asylum that he filed with the Immigration Service on April 12, 2005 listed not only his name, but his address as well.
Venezuela formally asked the United States government on May 10, 2005 to put an extradition detainer on him, but Washington continued to feign ignorance as to his whereabouts.
It wasn’t until May 17, 2005, that the DHS had no choice but to arrest him. During a bizarre press conference in Miami that day, Posada boasted that the government wasn’t looking for him and announced that he would abandon his asylum claim and leave the country. Posada´s brazenness was too much for DHS to swallow, and federal agents detained him immediately after the press conference and gingerly escorted him to a golf cart, wearing no handcuffs, to board a waiting helicopter.
Washington, however, exercised an immigration (and not an extradition) detainer on him. He was charged only with immigration infractions. Immediately, the U.S. government prejudged the case and issued a communiqué the day of his arrest that said: “as a matter of immigration law and policy, Immigration Customs and Enforcement (ICE) does not generally remove people to Cuba, nor does ICE generally remove people to countries believed to be acting on Cuba’s behalf,” a not so veiled reference to Venezuela.
Rather than prosecuting Posada´s extradition to Venezuela, the United States set in motion a purely administrative immigration matter, designed to protect rather than prosecute him.
In the immigration matter, Posada made several claims for relief: 1. that he was still a lawful permanent resident of the United States, 2. that he qualified for asylum, 3. that he qualified for withholding of removal, 4. that he qualified for protection from deportation under the Convention Against Torture (CAT).
Although it is true that Posada had been a permanent resident in the 60s, Posada long ago abandoned that status by establishing several domiciles abroad from which he conducted his campaign of terror. Moreover, the statutes prohibit a terrorist and a criminal from receiving either asylum or withholding of removal.
That left Posada to exclusively pursue CAT relief, because the Torture Convention does not bar criminals or terrorists from protection. However, the standard for CAT relief is a very high legal standard, much higher than the standard for asylum: the applicant must establish that it is more likely than not that he would be tortured if sent to a proposed country of removal. The burden or proof is on the applicant to show a clear probability of being tortured abroad. According to Department of Justice statistics published in 2003, the Court only grants 3% of the Torture Convention cases.
During the litigation of his application for CAT relief, we witnessed one of the sorriest episodes of legal maneuvering ever by U.S. prosecutors. The Government prosecutor set the tables to virtually guarantee that the Immigration Judge would grant Posada Carriles Torture Convention relief.
Posada called only one witness in his immigration case. A so-called expert on Venezuela who testified that in his expert opinion, Posada would be tortured if returned to Caracas. The witness testified that he “observed the effects of torture” on other notorious individuals whom he knew in Venezuela and that he feared Posada might suffer the same fate.
That witness was none other than Joaquín Chaffardet, friend, business partner and lawyer of Luis Posada Carriles in Venezuela. Chaffardet had also been Posada´s boss at the DISIP in the early 1970s, a man that Posada has been close to for the past forty years. The prosecutor never even cross-examined the witness or raise the possibility that the witnessed may be biased, rather than the disinterested observer he pretended to be.
Other than Chaffardet´s questionable testimony, no evidence in support of the theory that Posada would be tortured in Venezuela was presented.
The prosecutor not only failed to conduct any cross-examination, she failed to present a single document as evidence in the case: none of the CIA and FBI declassified cables that are on the internet, none of the almost thousand pages of documents that Venezuela gave the United States in relation to its extradition request, none of the interviews that Posada himself has given over the years where he boasts being a mastermind of terror. None!
The government’s tactic worked. Immigration Judge William Abbott credited Chaffardet´s testimony as credible and found a “clear probability” that Posada would be tortured if returned to Venezuela. Judge Abbott ordered his removal from the United States, but not to Venezuela or Cuba because he found clear probability that he would be tortured there.
Not surprisingly, DHS declined to appeal the decision. It was the decision that the White House wanted all along.
The order granting deferral of removal to Posada Carriles does not alter DHS´ authority to detain him. In a letter to Posada dated March 22, 2006, DHS announced its decision to detain him “for now”. The letter told Posada that he has a “long history of criminal activity and violence in which innocent civilians were killed.” His release from detention concludes DHS in its letter to Posada, “would pose a danger to both the community and the national security of the United States.”
In support of its interim decision to continue to detain him, DHS cites Venezuela’s pending extradition case against Posada and the fact that Posada fled from a Venezuelan prison while his trial for the downing of a passenger plane in 1976 was pending. “Your past also includes your escape from a Venezuelan prison which was accomplished after several attempts utilizing threats of force, explosives and subterfuge,” says DHS in its Decision.
DHS goes on to cite Posada’s own statements to link him to the “planning and coordination of a series of hotel and restaurant bombings that occurred in Cuba . . . in 1997.” These bombings resulted in the murder of an Italian tourist and the wounding of several others. DHS also cites Posada’s conviction in Panama for “crimes against national security,” in reference to his attempt to assassinate Cuban President Fidel Castro in 2000 with C- 4 explosives as President Castro was to speak to an auditorium with full of students.
Although it’s clear that Washington doesn’t want to deport him to Venezuela, it is not prudent to release him. The only way that he can continue to be detained without an extradition detainer is with a government finding that he is a danger to the community.
But the extradition case is not going to go away. Unless Posada has a heart attack and dies in prison, the law is eventually going to force the US government to proceed with the extradition case. A lot of people think that Judge Abbott´s finding that Posada may not be deported to Venezuela is a ruling on Venezuela’s extradition request. That is not the case. Extradition rulings trump immigration decisions. Although Posada may not be deported to Venezuela, he may be extradited there.
Moreover, even if Secretary of State Rice decides in her discretion not to extradite Posada, the treaties and conventions signed by the US government in the past obligate this country to prosecute him for the downing of the plane in the United States.
The United States is bound by three specific legal instruments to extradite or prosecute Posada Carriles for 73 counts of first degree murder:
1. The Venezuela-US extradition treaty of 1922.
2. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, in force since 1973.
3. International Convention for the Suppression of Terrorist Bombings, in force since 1998-but retroactive where a treaty of extradition exists between the parties.
In support of its extradition request, Venezuela submitted documents showing that Posada is under indictment in Venezuela for first degree murder in relation to the downing of the plane, that there is an arrest warrant outstanding against him in Caracas and that there is probable cause to hold him for trial as the mastermind of the downing of the passenger plane.
This is an airtight case. Only the Bush Administration’s desire to shelter this international terrorist impedes his extradition, but the law is clear. It obligates the United States to either extradite or prosecute.
The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation is very clear.
The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.
The Convention for the Suppression of Terrorist Bombings says the exact same thing in Article 8. There is no discretion. The United States must either extradite or prosecute. It cannot pretend he is simply an undocumented immigrant and place him in a comfortable holding facility in Texas until the extradition case goes away.
Venezuela’s extradition case is not going to go away. The government of Venezuela is firmly committed in the fight against international terrorism. Venezuela’s commitment is not to an a la carte war on terror, such as the Bush Administration wages: a war that distinguishes between “good terrorists” and “bad terrorists”.
Terrorists are criminals and must be prosecuted to the full extent of the law. Venezuela’s interest in Luis Posada Carriles will not rest until he stands trial for the first degree murder of 73 defenseless passengers aboard that civilian aircraft.
We are prepared to legally do whatever it takes to make sure that the United States government abides by its legal obligations to either extradite or prosecute him.
JOSÉ PERTIERRA is an attorney, practicing in Washington, D.C. He represents the Venezuelan government in the case of Luis Posada Carriles.