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Thursday, August 11 2005
LEGAL MEMORANDUM FROM COHA

 
On October 6, 1976 a bomb on Cubana Airlines Flight 455 between Trinidad and Havana exploded, killing all 73 people on board. Luis Posada Carriles, a 77-year-old anti-Castro Cuban exile and foreign fugitive, is allegedly the mastermind behind the atrocity, an accusation which he has selectively acknowledged. Posada’s curriculum vitae is enough to make many notorious terrorists feel that they are little better than novices. For four decades he has planned, executed or otherwise participated in bombings, assassination attempts and covert insurrections in the service of his extremist causes. In 1985, while being tried in Venezuela for his role in the Cubana bombing, he escaped from prison and went straight to work with paramilitary forces in El Salvador. He also participated in a series of hotel bombings in Havana in 1997, killing an Italian tourist, and, in 2000, he attempted to assassinate Fidel Castro while the Cuban leader was visiting Panama. He was arrested and convicted for the latter crime but was pardoned and released in May of 2005 in an unaccountable move by the outgoing president of Panama, Mireya Moscoso, for which she was fiercely attacked in the Panamanian press.

Currently, Posada is held in a federal facility in El Paso, Texas, after being charged with illegally entering the United States. Meanwhile, Venezuela is seeking his extradition. Posada’s presence in the U.S. poses a delicate problem for the White House, which will have to decide between enforcing its zero-tolerance policy against terrorism or appeasing its influential Venezuelan and Cuban-exile constituents in Southern Florida, where many see him as a counter-revolutionary hero. Ironically, Posada is seeking asylum in the U.S., relying on his claims of innocence, his ancient relationship with Florida’s governor Jeb Bush and his employment as a mercenary in the service of the U.S.-backed Contras fighters in El Salvador.

A Misinterpreted Legal History
The complexities of Venezuelan law have helped to confound press coverage of the Posada case for a number of years. While the majority of media accounts have reported that he was acquitted twice in Venezuelan courts, this version of events does not withstand scrutiny. The distinction is quite important, as the merits of Posada’s asylum request would be bolstered were he able to show the acquittals. Though the details of his court records do prove somewhat elusive, this much is known: Posada was first tried before a military tribunal, which acquitted him of the crime of treason. However, a higher military court found that the lower one lacked jurisdiction and annulled the entire case, which was then handed off to the civil courts. They would have prima facie jurisdiction over Posada, as he was at the time a citizen of Venezuela. Initially, the prosecutors in the civil case declined to try him; their replacements, however, saw fit to bring homicide charges against Posada, and it was during this period that he escaped from prison. Since Venezuela does not reach verdicts on defendants in absentia, the litigation was stalled, while a warrant was issued for his arrest.

To Posada’s potential benefit, many have interpreted this lack of a verdict to mean that two Venezuelan courts have found him innocent of terrorism. However, neither of the legal actions against him carried any precedential effect. The military tribunal annulment effectively wiped the slate clean, resetting the entire judicial process and leaving all parties situated as if no legal action had ever occurred. Nor did the initial prosecutors’ failure to act on the case in the civilian courts have any effect. There are several reasons that prosecutors may decline a case, including lack of evidence, bribery, insufficient resources and political motivation. In the final analysis, Posada was in the process of facing prosecution for a major crime at the time when he escaped from Venezuela. Venezuela now wants to exercise its sovereign right to try him, but first must overcome the bias introduced by the press, whose inaccurate reporting may have inadvertently lent Posada an ersatz veil of innocence.

Extradition versus Deportation
Generally speaking, extradition is controlled by treaty, that is, with some exceptions, there needs to be an existing bilateral agreement between the requesting country and the country holding the fugitive. Such agreements define and govern the process between the two countries and vary by country. The U.S. has extradition treaties with both Cuba and Venezuela, which were ratified in 1905 and 1923, respectively. Extradition requests are handled by the State Department, whereas deportation cases are treated administratively by the Immigration and Naturalization Service (INS) or in court proceedings before an immigration judge, which has been the case with Posada.

While Cuba has declared in the past that it has no extradition treaty with the U.S., and the Department of Homeland Security (DHS) has stated that it “does not generally remove people to Cuba,” neither of these positions appear to be totally accurate. According to the State Department’s Treaties in Force database, the U.S.-Cuba extradition treaty of 1905 is still valid and effective. Additionally, as recently as 2003, the U.S. extradited 12 Cubans to their homeland. However, despite its interest in the case, Cuba is not requesting jurisdiction; rather, it is calling instead that Posada be extradited to Venezuela, where he can be tried for his role in the ’76 airliner bombing.

On May 13, 2005, Venezuela issued a provisional arrest request for Posada’s extradition. It was rejected by the State Department as providing too little documentary evidence of Posada’s guilt. Venezuela responded with a statement that it would make a formal request for extradition and provide ample documentation in support of it. The State Department then said that it is not ruling out the possibility of granting the formal extradition request, but the general tone of hostility coming from its press office in ensuing days over the issue renders such an award seem most improbable. This is particularly the case as bilateral relations between the two countries rapidly deteriorate, and as Miami’s Venezuelan hardline exile community exercises its increasing political leverage over relations between the U.S. and Venezuela.

While it might reflect a lapse in international protocol, a failure to extradite Posada at this time would not necessarily indicate that he will never have to face justice in Venezuela. The much less politicized solution to the problem would be deportation, a process controlled at the judicial level rather than by the Secretary of State. Since Posada is a citizen of Venezuela and is in the U.S. illegally, it would make sense to send him back to Venezuela, where the authorities can decide what to do with him.

Deportation to Venezuela is likely to be the most expedient way for the U.S. to handle the Posada case, and Judge Abbott, who will be hearing the case on August 29, may have little discretion in this matter. Section 8 U.S.C. 1182(a)(3)(B)(i) of the U.S. Code states that any alien who has engaged in, solicited or incited a terrorist activity or is a representative of a terrorist organization, is inadmissible to the U.S. Posada does not fall within the narrow exceptions to these clauses, and with the wealth of evidence – much of it coming from his own past admissions to the press – pointing to his guilt for each of these violations, justifying his acceptance as a legal immigrant would be nearly impossible. Furthermore, even if he can successfully argue that he is a U.S. citizen by virtue of permanent residency (an argument his lawyers are expected to make due to his previous, though remote, stay in Florida), under the Intelligence Reform Act of 2004, he could be stripped of his citizenship if the government determines that he is guilty of certain human rights offenses. Torture and extrajudicial killings under color of authority are the main grounds for these violations, and given Posada’s self-acknowledged extensive background in terrorism and covert operations, it is quite conceivable that such violations could be established. Finally, Posada is also wanted by authorities in El Salvador, who have issued a warrant for his arrest for document fraud. This further militates against granting him asylum and also gives the court the option to deport him to another nation – one that, compared to Cuba or Venezuela, enjoys a cordial relationship with the U.S.

Barring High-Level Intervention, the Outcome Should be Predictable
Posada’s immigration case appears to be straightforward. With the preponderance of the evidence weighing against him (hearsay is admissible in immigration proceedings and Judge Abbott has even ruled that his conviction in Panama can be used against him, regardless of the pardon), all the court has to do is apply the law, which would deny his admission to the U.S. and deport, rather than extradite, him to Venezuela. Alternatively, evidence suggests that Posada used a false passport to enter the U.S. just prior to the botched assassination attempt in Panama, and Abbott may throw the book at him for using fraudulent documents to enter the U.S. for terrorism-related purposes – an offense punishable by a sentence of up to 25 years in prison. Either way, Posada’s future lies in the court’s hands, and any intervention by the White House on behalf of his case would be considered offensive. However, such political maneuvering is not unprecedented; in 1990 President George H. W. Bush overruled his own Department of Justice and had Orlando Bosch – a known international terrorist and Posada’s former partner-in-crime in the airline bombing- released from a Florida prison and granted asylum. Bosch now enjoys his mysteriously granted freedom in Miami. In today’s post-9/11 milieu, a similar move by the current administration would seriously undermine the credibility of the Bush doctrine.

This analysis was prepared by COHA Senior Research Fellow Joshua Soren Graae.
August 11, 2005
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