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The Gathering Storm

The trial of Luis Posada Carriles in El Paso stands now al filo del agua—on the eve of a major storm. I’m not talking about an Arctic storm like the one that hit this border town last week, causing power outages and even problems with our potable water, due to the record-breaking cold—minus 4 degrees Fahrenheit. The storm that will probably arrive tomorrow in El Paso is of another nature.

The great Mexican writer, Agustín Yáñez, said “al filo del agua is a campesino expression, meaning the immediate moments before the rains.” In a figurative sense, it means the coming of a major storm.

Tuesday

This Tuesday we get to the heart of the matter: the evidence and testimony related to the campaign of terror that set off bombs in a number of hotels and restaurants in Cuba in 1997. One of these killed an Italian businessman, Fabio Di Celmo, in Havana on September 4, 1997 at the Copacabana Hotel.

Up to now, the case has involved only the immigration infractions of Luis Posada Carriles’ illegal entry into the United States. The prosecution alleges that he arrived on the Santrina, a converted shrimp boat, and disembarked in Miami. Whereas the defendant says that a smuggler drove him into the country in a blue pickup truck that crossed the Mexican/U.S. border at Brownsville, Texas. No one doubts that he entered illegally, but the prosecution maintains that Posada lied to protect his coconspirators aboard the Santrina. It’s a very serious felony to smuggle a terrorist into the United States. Punishment could include up to 30 years in prison. We also heard testimony and looked at evidence of Posada Carriles’ use of false names, including one that appears next to his photograph in a Guatemalan passport.

The Cuban witnesses

As the case moves towards its dénouement, we turn to the next chapter. Already in El Paso and prepared to testify, are three Cuban experts who investigated these crimes in 1997:

1. Lieutenant Colonel Roberto Hernández Caballero, the only Cuban witness in the case of the Cuban Five in Miami in 2000/2001.

2. Major Misael Fonte, from the Central Crime Lab in Havana, with 18 years of experience as an expert there.

3. Dr. Ileana Vizcáino Dime, the medical forensic pathologist who examined the body of Fabio Di Celmo and found that the cause of death was a piece of shrapnel hurled from an explosive device that slashed his jugular vein.

But the United States is not accusing Posada Carriles of terrorism or murder. He stands indicted only for making false statements to U.S. Immigration authorities and committing perjury. However, much of Posada’s mendacity, under oath, is closely related to the bombs that were placed in Havana’s hotels in 1997 and to the murder of Fabio Di Celmo.

Three weeks ago, a jury in El Paso listened to a recording and clearly heard Posada Carriles tell an immigration judge in 2005 that he was not involved with the bombs that exploded in Havana in 1997, nor had he sent anyone with explosives from Central America to Cuba in that year.

Now the jury will hear that there was indeed a terrorist campaign that shook Havana 14 years ago.

Cuba delivered four files of information containing samples of the materials used for the explosives, videos with statements from eyewitnesses and from those arrested and transcripts of telephone conversations of those who perpetrated the terrorist acts. Cuban law enforcement officials taped some of these conversations.

Hernández: “The source is rotten”

What is Posada Carriles’ attorney’s strategy for confronting the testimony from the Cubans? In an interview that Posada Carriles’ attorney gave Channel 41 in Miami two months ago, Arturo Hernández outlined his opposition to the witnesses and to the Cuban evidence. “The problem is that the government’s proof comes from Cuba, and since the source is rotten, the evidence is rotten,” he said.

Judge Kathleen Cardone has prohibited the attorneys from giving interviews to the press while the case is being litigated. On August 25, 2009, Judge Cardone told the lawyers, including Hernández, that they must not make statements to the press that might influence the jury. This restriction was also placed upon Posada Carriles.

Hernández’s statements on Channel 41 caused a brief stir in court last week, when prosecution attorney Teresinski complained that Hernández had given an interview to that television station. Hernández told Judge Cardone that he’d only gone on the program to raise funds for the costs of litigating the case.

The video reveals that in an interview that lasted 11 minutes and 55 seconds, Hernández dedicated only a minute and a half to soliciting money. The rest of the interview is a frontal attack on the Cuban witnesses and evidence.

For example, in reference to the Cuban witnesses and without first listening to their testimony, Hernández already prejudged it. “There cannot be any truthful testimony while these individuals [the witnesses] are in the claws of the dictatorship of Fidel Castro and Raúl Castro…[In Cuba] there’s no truth. There, only the dictator’s truth exists. No statement that might come from Cuba is worth anything at all, in my opinion,” he said to the Channel 41 reporter.

It’s obvious that Hernández will brand the Cuban witnesses as nothing more than puppets of the Cuban government, as well as liars. I wouldn’t be surprised to hear him say that they are spies. Miami Cubans love to go down that road.

Thomas B. Wilner, an attorney with the law firm of Shearman & Sterling in Washington, DC, told me that the statements Hernandez made on Miami television are a possible violation of the rules of conduct that Judge Cardone imposed on the attorneys. “What Hernández said in that interview was designed to undercut the testimony, the evidence and the verdict,” said Wilner. “The prosecutor ought to raise this with the judge and tell her the details of what he said on Miami television,” he concluded.

During the interview with Channel 41, Hernández said, “I admire [Posada Carriles] as a Cuban patriot.” He did not explain why he admires him. The U.S. filmmaker Saul Landau commented, “if Posada has done nothing, why is he so admired and why do they pay him so much homage in Miami?”

The battle over the passport: Act Two

As a prelude to the gathering storm, today’s session began with motions from the prosecutors and the defense attorneys. Posada Carriles’ attorney, Rhonda Anderson, asked Judge Cardone to reconsider her decision last Friday to admit the Guatemalan report as evidence. This report also includes a copy of the Guatemalan passport with the photo of Posada Carriles, but under the name of Manuel Enrique Castillo López.

The prosecutors also moved for reconsideration. They argued that the judge should accept the original Guatemalan passport into evidence, since she had already accepted the copy as evidence.

Judge Cardone rejected the motions from both sides in less than two minutes and convened the jury.

ICE official: “I never searched the Santrina”

Attorney Arturo Hernández cross-examined Steven Usscher, an investigator from U.S. Immigration and Customs Enforcement (ICE) who also testified on Friday. He managed to get Usscher to tell the jury that he had never carried out an inspection of the Santrina to find evidence that Posada Carriles had been on the boat. He said that he has no photographs or other evidence of the presence of Posada Carriles aboard the boat. Usscher, however, was not assigned to the case until a year after the Santrina is alleged to have brought Posada to Miami.

Prosecutor Reardon

The prosecutor, Timothy J. Reardon, then called the next witness, James Patterson, of the United States Citizenship and Immigration Service (USCIS) office in El Paso. Despite heading up the government’s legal team, Reardon has until now allowed his colleagues Jerome Teresinski and Bridget Behling to conduct most of the direct examination.

Reardon exudes personal presence. He dresses with elegance in pinstriped suits, starched white shirts, colorful ties and a white handkerchief tucked into his breast pocket. As the famous tango says, las nieves del tiempo blanquearon su sien, “the snows of time whitened his temples.” He is eloquent yet knows how to get directly to the point.

When the members of the jury realized that he would be in charge of Patterson’s questioning, they took notice, sat up straighter, took out their notebooks and pencils and readied themselves to take notes.

But they had to wait a bit for the direct examination to begin. The defense attorney, Felipe Millán objected to Patterson’s testimony. “It’s cumulative testimony,” said Millán. “Patterson has nothing to do with the Posada case. “Officer Bolaños already testified on the same points. She was the person who interviewed Posada in 2006 in relation to his naturalization application,” he told the judge.

“No,” said Reardon. “Mr. Patterson will testify to complete the record.” Reardon argued “the defense´s cross-examination of Bolaños insinuated that the naturalization interview was an attempt to entrap Posada.” Patterson, he said, “destroys the myth that there was a government conspiracy against Posada.”

The judge overruled Millán’s objection and asked Reardon to begin his direct examination of Patterson.

Patterson did not testify about anything of substance. He said he has almost 13 years of experience and has performed some five or six thousand interviews in naturalization cases. Patterson said that “naturalization officers are obligated to interview each applicant personally in order to determine whether they are eligible,” thus debunking the defense theory that the interview had been a pretext for entrapment. Hearing what he wanted to hear, the prosecutor concluded his direct examination.

The expressions on the faces of the jury members showed their disappointment. They had wanted to hear something substantive: important evidence. They were frustrated that the witness was only called to establish the bureaucratic procedures at USCIS.

The jurors don’t realize it yet, but tomorrow they will hear substantive testimony. Although it has not been announced, I am sure that the person who will examine the Cuban witnesses will be Reardon. It’s a question of the importance of the testimony but also one of protocol. The witnesses are here at the special invitation of the government of the United States, and it is logical that lead counsel will conduct the direct examination.

Historic collaboration

When in 1998, Cuba gave the United States evidence regarding terrorist acts on the island, Washington used it to jail the Cuban Five. None of the terrorists was prosecuted or arrested. It would appear that a new paradigm of collaboration between the two nations is at work here.

Posada Carriles’ attorney commented to Channel 41 in December that “it’s scandalous that the government of the United States is collaborating in this unprecedented way with the Cuban government.” Among certain extremist sectors in Miami that collaboration may be seen as a scandal, but it is important and historic.

For the first time, the United States is showing a willingness to establish before a federal court that Posada Carriles directed a terror campaign against Cubans with the financing of certain terrorist groups in Miami and New Jersey. It’s true, until now he has only been indicted for lying, but beginning tomorrow, there is much, much more at stake in El Paso.

José Pertierra practices law in Washington, DC. He represents the government of Venezuela in the case to extradite Luis Posada Carriles.

Translated by Machetera and Manuel Talens. They are members of Tlaxcala, the international network of translators for linguistic diversity.

Spanish language version: http://www.cubadebate.cu/opinion/2011/02/05/el-diario-del-paso-la-batalla-del-pasaporte/

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José Pertierra is an attorney in Washington, DC.

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