Cuban-born terrorist receives kid glove
treatment in U.S.
By Amaury Cruz
Incredibly, in a matter of
months, the notorious terrorist Luis Posada Carriles may be walking the streets
of Miami as a free man. According to the decision of U.S. Immigration Judge
William Lee Abbott on September 26, 2005, Posada should be excluded from
entering the U.S. but will not be deported to Cuba, his place of birth, or
Venezuela, his adopted country. These are the two countries that would like to
try Posada for alleged terrorist acts. Venezuela formally filed a timely
extradition request, but the Judge apparently ignored it. Posada will be
detained for now, but he will be eligible to request freedom in ninety days
under a controlling Supreme Court precedent unless another country accepts him.
There is little if any
doubt that Posada is an international terrorist. He twice confessed – bragged –
to masterminding a series of bombings in Havana hotels and restaurants in 1997
designed to scare away tourists and resulting in the death of an Italian visitor. He
was convicted in Panama of endangering public safety in connection with an
alleged plot to assassinate Fidel Castro in 2000. And there is compelling
evidence he was behind the bombing of a Cuban airliner that killed 73 people in
1976. Among other things, CIA and FBI documents show he attended at least two
planning meetings for the attack. Asked by a Miami Herald reporter about
other attacks, he answered, "Let"s leave it to history."
Posada escaped from a
Venezuelan jail in 1985 before the conclusion of his re-trial in a civilian
court after his acquittal in a military court was overturned by a military court
of appeals. Earlier this year, Posada turned up in Miami and essentially dared
Homeland Security agents to come and get him. He reportedly was seen in public
in Key Biscayne, and was returning from a press conference in the Everglades
when he was finally apprehended.
Judge Abbott's decision
represents an astounding reversal of fortune for this fugitive, who had been
hiding in Latin America. With all the tough talk in the Bush administration
about fighting terrorism, it is hard to imagine that someone with Posada's
pedigree would be allowed to stay in the U.S., let alone be set free.
How did this happen? The
following discussion is based on a review of Judge Abbott's decision.
deportability for his physical presence in the U.S. without proper admission or
parole. Eventually, he also conceded deportability for being an immigrant
without a proper visa. The judge therefore found that Posada was deportable.
Posada applied for asylum
and withholding of removal under U.S. refugee protection statutes and the
international Convention Against Torture. He later withdrew his application. The
only issue left before the judge was whether to grant deferral of removal to
either Cuba or Venezuela. But the government stipulated to a grant of deferral
as to Cuba. The question then was whether to send Posada to Venezuela.
Only two witnesses
testified in Posada's behalf: he and Joaquin Fernando Chaffardet Ramos, an
attorney from Venezuela. Posada testified that, as a result of his anti-Castro
activities, he would be tortured and killed if he was returned to either Cuba or
Venezuela. He added that because of existing ties between Castro and Chavez,
Chavez might send him to Cuba or he might not receive a fair trial in Venezuela
due to Castro's influence. Chaffardet opined that due to President Chavez's
extraordinary interest in the case, Posada could not receive a fair trial in
Venezuela. He also testified that he had personally observed acts of torture by
Venezuelan security personnel.
for the government, who were supposed to play the role of prosecutors against
Posada, did not submit any rebuttal evidence specifically relating to Posada's
application for deferral of removal. All
they articulated was that the Venezuelan constitution prohibits the extradition
of its citizens to other countries. Furthermore, the government stipulated that
Posada was likely to face torture in Cuba and, while they did not have
any specific information indicating this would happen, expressed concern that
Chavez might allow Cuban agents to come to Venezuela to torture Posada. Thus,
the government's attorneys, in effect, made the case for Posada because,
under the law, Posada's burden was to establish that it was more likely than not
that he would be tortured in the proposed country of removal.
What is worse,
they made the case in the absence of any competent evidence. Astonishingly, the
lead government lawyer in the Posada case had taken a very different position in
another recent immigration case involving two former Venezuelan national guard
officers, according to the Venezuelan embassy and as reported in The
Miami Herald ("Posada could remain in U.S." Sept. 27, 2005, B-1).
In fact, the U.S.
has been intentionally sending terrorist suspects to Egypt in order to be
tortured and has had no compunction to argue for deportation to Egypt, a country
notorious for torturing all kinds of prisoners, even in the case of a man busted
for selling alcohol after hours, and not even for terrorism, but for buying pot
in 1999. (See "Deportation hinges on pot case," Miami Herald, July 10,
the Posada matter, the judge reasoned that "[d]eferral of removal is available
to terrorists, aggravated felons, persecutors and torturers alike if the burden
of proof is established. Consideration of their past is not relevant to whether
they qualify or not." He added, "Therefore, the most heinous terrorist or mass
murderer would qualify for deferral or removal if he or she could establish the
necessary burden of proof regarding the probability of torture in the future." Accordingly,
the judge refused to admit into evidence interviews, unclassified cables and
other items tending to prove Posada's terrorist background because they were "not
government did not even attempt was to introduce into any evidence to rebut the
prima facie case made by Posada through his testimony and that of Mr.
Chaffardet, despite the fact it was granted a continuance to do so. The
government's concession to the defense was based on "growing political and
economic ties between Venezuela and Cuba." Thus, while the Judge found that
Venezuela does not engage in systematic torture, these ties "might foster a
climate where Cuban agents might be allowed to travel to Venezuela to
One can only
shake one's head at how our government's lawyers took a position contrary to
that taken in a similar, recent case, and how they did the work of the defense
in Posada's case – or failed to do their work. Or how their concession was based
on flimsy, political considerations instead of admissible evidence.
Clues to the
reason for this behavior may be found in the fact that Posada withdrew his
application for asylum so as not to "embarrass" the U.S. government. Who knows
what he would have testified concerning his previous work for the CIA or other
U.S. spy agencies. It is also noteworthy that, according to Posada's attorney,
as reported in The Miami Herald ("Judge: Posada to stay in U.S.
for now," September 28, 2005), "This is what we envisioned as going to happen
from the beginning." One can take this statement as an expression of a satisfied
lawyer contemplating the results of his brilliant strategy. But one can also
take it as a reflection that there is more to this case than meets the eye,
namely a deal to avoid embarrassing revelations or corruption within the
administration, which gave the Department of Homeland Security attorneys its
marching orders. Looking back at Posada's brazen appearance in Key Biscayne a
few months ago, it is not hard to imagine that the whole thing was orchestrated
beforehand. We shouldn’t forget that another convicted terrorist and close
Posada associate, Orlando Bosch, was pardoned by President George H. Bush in
What is clear is
that the results of these proceedings are an embarrassment to the U.S. If
Pakistan, for example, captured Osama bin Laden, it could cite Judge Abbott's
decision to deny a U.S. request for deportation. It doesn't matter that he is a
mass murderer and a heinous terrorist. Although the U.S. does not engage in
systematic torture, it has tortured "enemy combatants" in both Abu Ghraib and
Guantanamo. Besides, President Bush surely would have a keen interest in his
case. And I'm sure bin Laden could find someone to testify he would be more
likely than not to be tortured here. Heck, it might be in bin Laden's interest
to show up on Key Biscayne. Ninety days after his immigration trial, with no
other country willing to take him other than those that engage in occasional
torture (which country doesn't?) or have good relations with a despot (which
country doesn't?), he might easily start blending in, as a free man, with an
assortment of other deposed dictators and human rights violators roaming the
streets of South Florida.
Amaury Cruz is a
lawyer in Miami; he is also a Cuban-American activist and a member of the group
Cuban Americans for Change.