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Graymail and Secret Memos

What’s going on behind the curtain in the Luis Posada Carriles trial in El Paso? Judge Cardone suspended proceedings for three days. The first day, because the attorneys needed to “attend to some legal matters.” The second day, because defense attorney Rhonda Anderson had a “personal tragedy.” The third day, because a juror fell ill. The lawyers are not resting, however.

They are busy writing motions, some of them sealed.

Secret motions

The website for the Federal Court in El Paso reveals that both the prosecution and the defense have recently filed secret motions with Judge Cardone.
We don’t know exactly what the motions say, because they are sealed. But it is not difficult to figure out what they’re about. Prosecutor Bridget Behling filed the latest one. It was titled: Notice of Ex Parte, In Camera and Under Seal Motion and Memorandum of Law Filed Under Section 4 of the Classified Information Procedures Act.

What does this mean? As its title reveals, both the motion and the legal memorandum are ex parte. From the Latin “by or for only one side,” a government ex parte motion in a criminal case is not shared with the defendant. The judge conducts an evidentiary hearing on such a motion only with the prosecutors. The defendant is not allowed to participate. Normally, such meetings are forbidden by the Constitution, although there are some limited exceptions—such as when the national security of the United States is allegedly at stake.

A closer reading of the title of Ms. Behling’s motion reveals the legal foundation for her ex parte motion: Section 4 of the Classified Information Procedures Act (CIPA).

CIPA

The purpose of the CIPA law is to protect classified information to which the defense should ordinarily have access during a criminal trial. The Department of Justice has an obligation to enforce the law and bring criminals to trial, but also to protect the national security secrets of the United States.
Section 4 of the CIPA law is subtitled, “Discovery of classified information by defendants.” It concerns discovery requests from criminal defendants for classified information in the possession of the United States. In this case, the defendant, Luis Posada Carriles, is an ex-CIA agent. He is insisting that the government declassify certain documents that would be helpful in preparing a defense to the charges of perjury and false declarations. What could that classified information be?

Posada Carriles and the CIA

Last February 8, Arturo Hernández, Posada Carriles’ lead attorney, told Judge Kathleen Cardone that he had been asking the prosecutors to declassify the payment records of the CIA to his client as well as all the information in its possession about the aliases that the CIA had told his client to use. Hernández also said that he had asked the prosecution to declassify a secret report “that shows that the CIA ordered Posada Carriles to keep quiet, as well as all documents about Posada Carriles’ work for the CIA until 1996, plus documentation regarding his work on behalf of the DISIP (the former Venezuelan intelligence service).”

The exchange that occurred that day in court between Judge Cardone and Prosecutor Jerome Teresinski about these defense requests is very interesting. Teresinski told the judge that the information sought by the defendant is irrelevant to the case at bar—that this move was simply another effort by attorney Hernández to “muddy the process.” Teresinski added, “Furthermore, the defendant has never presented a public authority defense that he was authorized to use those aliases—he’s never done that.”

Remember that counts 4 and 11 of the indictment allege that Posada Carriles lied when he said that the only pseudonyms he ever used had been “Ramón Medina” and “Franco Rodríguez.” The government has already established that he had a Guatemalan passport bearing his photograph under the alias “Manuel Ernesto Castillo López.”

Three weeks ago, the defense attorney told the Court, “My client lied about the aliases because they were given to him by the CIA.” Arturo Hernández alleged that “there was complicity between the CIA and Posada regarding the aliases, but I can’t go forward with that information without violating the attorney-client privileged information.” Hernández punctuated his arguments with the warning that “we will be filing a Section 5.”

This is a reference to Section 5 of the CIPA law, which says that if a criminal defendant demands that the government declassify certain documents that are allegedly vital to his case, the defense attorney must first file a formal notice regarding the information sought.

But what classified information is Posada Carriles after?

A shocking footnote

A footnote in a document filed by the defense last year on January 28 is quite revealing about the kind of classified information that Posada Carriles threatens to expose. His attorney, Arturo Hernández, argues in that motion, “The Defendant’s CIA relationship, stemming from his work against the Castro regime through his anti-communist activities in Venezuela and Central America, are relevant and admissible to his defense.”

The defense attorney then goes on to make a shocking accusation by way of a mere footnote. He alleges that the U.S. government was complicit in the bombing campaign in Cuba in 1997. There he asks the Court to compel the government to declassify all the information that shows the “involvement, knowledge, acquiescence and complicity [of the U.S. Government] in sabotage or bombings in Cuba.” Also, “[t]raining, instructions, memos or other documents reflecting orders to the Defendant to maintain secrecy and not disclose his relationship or information regarding his activities on behalf of the U.S. Government or any of its Agencies.”

This is a major league threat. Posada Carriles is telling the Court that the Government of the United States was involved in the 1997 terrorist campaign against Cuba—the same terrorist operation that he presumably masterminded.

Graymail

The U.S. Congress approved the CIPA law to counteract a problem called graymail—a lighter shade of blackmail. A number of defendants on trial for terrorism have tried to graymail the government by demanding that the government declassify national security information concerning their case. They claim a Sixth Amendment right to the information, lest their due process rights at trial be violated.

The CIPA threat

The sealed motion that the Government filed yesterday confirms that Posada Carriles is aggressively using graymail to try to get the indictment against him dismissed.

The law outlines the legal process that a Section 5 petition under CIPA generates. Rather than declassify the documents sought by the defendant, the Government could instead provide Posada Carriles with a sanitized summary of the classified information, thus avoiding the declassification of national security secrets.

The Government’s proposed summary, however, is subject to Judge Cardone’s approval. If she finds that a failure to provide a full declassification jeopardizes Posada Carriles’ right to a fair trial, then she can reject the proposal. But she cannot force the Government to declassify secrets that impact on the national security of the United States. In a case where the defendant’s due process rights are at stake, the judge’s only remedy is a dismissal of the indictment.

This is exactly what attorney Arturo Hernández has been looking for. Thus far, he has moved for a mistrial five times. Posada Carriles knows that the Government is reluctant to declassify documents concerning his more than four decades of work for the CIA, and the defense will milk this to his advantage as far as Judge Cardone will allow.

The litigation in this case has gone in this direction before. Last year, Posada Carriles forced the Government to ex parte file some classified documents with the Court, so that Judge Cardone could review them. She ruled, “Divulging these documents in their present form would be damaging to the national security” of the country.

The defense counsel is now trying to bring in through the back door what he was unable to bring in through the front, as prosecutor Reardon has pointed out several times during this litigation. Hernández continues to argue, in open court, that the Government “is hiding behind the CIPA law” to refuse to turn over important documents to the defense. The defense counsel is really after a mistrial, counting on the Government’s refusal to declassify those documents.

The CIA’s skeletons

Posada Carriles’s graymail may turn out to yield some of the CIA’s most well-guarded secrets concerning its activities in Latin America during the last several decades. There are plenty of skeletons hidden in Langley’s closets, and Posada Carriles knows where many of them are.

A few questions

Right now at this legal crossroads in the case, several questions come to mind. I’ll share a few.

Is Posada Carriles blackmailing the U.S. Government?

Why has the Government refused to declassify the CIA files on Posada Carriles?

What are the secrets involving Posada Carriles and the CIA that so impact on the national security of the United States?

Is there anything to Posada Carriles’ allegations that Washington was complicit in the bombings in Havana in 1997?

Who were the masterminds behind the campaign of terror against Cuba during the last fifty years?

Is Posada Carriles a loose cannon? A hired gun?

Was the CIA involved in the downing of the Cuban passenger plane in 1976 that killed all 73 people on board? Was Posada Carriles acting alone?

These questions and many more remain unanswered as the case against Luis Posada Carriles for perjury continues in El Paso.

The jurors get a modest raise

The jurors are unaware of the legal battle that is raging behind closed doors. They are not allowed to know, yet it is they who must ultimately judge whether Posada Carriles is guilty or not.

Judge Cardone did give them a modest raise, however. They will be earning $10 more per day, because the case has lasted more than 10 days. In fact, we are fast approaching two months here in El Paso. I’m sure that the jurors can use the 10 extra dollars a day, but they would probably gladly trade them for a quick resolution of this never-ending case.

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

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

Spanish language version: http://www.cubadebate.cu/noticias/2011/01/27/diario-de-el-paso-abascal-para-rato/

 

 

 

 

 

 

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José Pertierra is an attorney in Washington, DC.

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