National Committee to Free the Cuban Five

Court: Ex-CIA operative should stand trial

by Diana Washington Valdez
Aug. 15, 2008
Reprinted from El Paso Times

EL PASO -- Former CIA operative Luis Posada Carriles should stand trial in El Paso on immigration fraud charges, according to a ruling of the 5th U.S. Circuit Court of Appeals in New Orleans announced Thursday.

The criminal case against Posada was dismissed last year when U.S. District Judge Kathleen Cardone of El Paso ruled that the government engaged in trickery and deceit by using a naturalization interview to build a case against Posada.

"We're pleased with the ruling and will proceed forward as appropriate," said Dean Boyd, a U.S. Justice Department spokesman.

Posada's El Paso lawyer, Felipe Millan, was not available for comment late Thursday, and a law clerk for Cardone at the federal courthouse said the judge had not yet read the appeals court's ruling.

A court date for his trial has not been set.

Posada made international headlines because he is wanted in Venezuela on charges that he plotted the 1976 bombing of a Cuban airplane that killed more than 70 people.

On Thursday, Gloria LaRiva, an organizer with ANSWER Coalition and the National Committee to Free the Cuban Five in San Francisco, said, "We would like to see him extradited to Venezuela to face trial on the terrorist charges. We will be back in El Paso for the immigration hearing."

The Cuba native and former U.S. Army officer, who has denied any wrongdoing, is also suspected of taking part in plans to assassinate Cuban leader Fidel Castro in 2000.

U.S. authorities have charged Posada only with lying in his U.S. immigration case.

A federal grand jury indicted Posada in 2007 in the immigration fraud case after prosecutors argued that he lied about how he got into the United States in 2005 and other facts about his past.

Posada first was arrested on a civil immigration violation in May 2005 after allegedly illegally entering the United States from Mexico.

He has claimed a smuggler brought him across the border into Texas, but U.S. federal authorities alleged he arrived in Florida by boat from Mexico.

Last year, Posada was released from jail, and he has been living with his family in Miami.

Appeals court orders Cuban militant to stand trial

EL PASO, Texas — A federal appeals court on Thursday ordered Cuban militant Luis Posada Carriles to stand trial in El Paso on immigration fraud charges.

A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans ruled that Posada, an aging anti-Castro militant, should stand trial on charges that he lied to federal authorities in his 2005 bid to become a U.S. citizen.

The criminal case against Posada was dismissed last year when El Paso-based U.S. District Judge Kathleen Cardone ruled that the government engaged in trickery and deceit by using a naturalization interview to build a case against Posada.

Lawyers for Posada in El Paso and Miami did not immediately respond to telephone messages seeking comment Thursday.

In an e-mailed statement to The Associated Press, Justice Department spokesman Dean Boyd said, "We're pleased with the ruling and will proceed forward as appropriate."

The Cuban-born citizen of Venezuela is wanted in the South American country on charges that he orchestrated the 1976 bombing of a Cuban jetliner. He has denied any wrongdoing.

Posada was first arrested on a civil immigration violation in May 2005 after sneaking into the country from Mexico about two months earlier. Posada, a former CIA operative and U.S. Army officer, has claimed that he was brought across the border into Texas by a smuggler, but federal authorities have alleged that he actually sailed from Mexico to Florida.

Posada, who has a pending deportation order, was released from jail in April 2007 and has been living with his family in Miami. An immigration judge has ruled that he cannot be sent to Venezuela or Cuba because of fears he would be tortured. No other country has been willing to let Posada in.

In January 2007, a federal grand jury indicted Posada in the immigration fraud case after prosecutors argued that he lied about how he got into the United States in 2005 and other facts about his past.

In a 38-page ruling issued just before his scheduled trial in May 2007, Cardone said a transcript of Posada's naturalization interview was imprecise, omitted key elements of the interview, and appeared to have been transcribed by several different people of varying skill. She also said a government-provided Spanish-language translator was incompetent.

"In addition to engaging in fraud, deceit and trickery, this Court finds the Government's tactics in this case are so grossly shocking and so outrageous as to violate the universal sense of justice," Cardone wrote.

She also concluded that the naturalization interview was used by the government as a pretext to build a criminal case.

The appeals judges, however, concluded in a 35-page ruling that "the government conduct identified by the district court as the grounds for dismissing the indictment simply has no relevance to these alleged offenses."

The court also ruled that because Posada initiated the naturalization proceeding, the government was obliged to provide an interview and investigation.

"It strikes us as highly incongruous, to say the least, for these proceedings to then be characterized as a sham engineered by the government," the court ruled.

The court also concluded that a review of Posada's interview and documents in the case appeared to show that the naturalization interview was above board.

"More broadly, nothing in the record suggests that the naturalization interview was anything other than a bona fide examination conducted in accordance with the applicable regulations," the judges ruled.

A federal appeals court ruled Thursday that Cuban militant Luis Posada Carriles should stand trial for an alleged immigration violation in the United States. The decision is likely to inflame Cuba and Venezuela, which want to prosecute him for terrorism in the 1976 bombing of a Cuban jetliner.

The decision by a three-judge panel of the U.S. 5th Circuit Court of Appeals in New Orleans was expected to take the pressure off the Bush administration to respond to Venezuela's demands that Posada, who lives in Miami, be extradited to face trial for the bombing. The plane, en route from Venezuela to Havana, exploded in flight shortly after making a stop in Barbados. All 73 people aboard were killed.

At the time, Posada lived in Caracas, Venezuela's capital, and held joint Cuban and Venezuelan citizenship. Venezuela was a U.S. ally.

Posada, 80, worked for the CIA during the Cold War and has been tied to covert "black operations" in Latin America. His Miami lawyer has intimated that the man considered a freedom fighter by many fellow Cuban exiles could reveal information embarrassing to the government, including former President George H.W. Bush, who was director of central intelligence during part of Posada's CIA service.

Posada's communications with the spy agency -- disclosed in declassified documents obtained by the National Security Archive at George Washington University -- show that he told his handlers in Washington of plans to "hit" a Cuban airliner days before the Oct. 6, 1976, explosion. The incident is considered to be the first case of air terrorism in the Americas.

Venezuela had tried Posada for the bombing in the 1980s, but he was acquitted on a technicality. The government kept him in a Caracas jail pending retrial, but he escaped in 1985.

Panama convicted Posada of conspiracy in a 2000 attempt to assassinate Fidel Castro. But in 2004, the outgoing Panamanian president pardoned him and three other Cuban exiles from Miami in what was perceived as a favor to President Bush in an election year.

Posada made his way to the U.S. and was arrested in May 2005 for illegal entry. Venezuela demanded that the notorious anti-communist be extradited for retrial in the bombing.

Instead, in January 2007, a federal grand jury in West Texas indicted Posada on immigration fraud charges.

That immigration case was thrown out last year by U.S. District Judge Kathleen Cardone in El Paso on grounds of government misconduct. Thursday's appeals court panel rejected Cardone's ruling and ordered the case to trial.

Shortly after Posada's 2005 arrest, a U.S. immigration judge ruled that he could not be sent to Venezuela or Cuba because he could face torture there. The State Department sought to deport him elsewhere, but at least seven friendly nations have declined to take in the renowned militant.

A federal appeals court in New Orleans on Thursday reinstated an indictment against Luis Posada Carriles that charged the Cuban exile militant with lying about how he sneaked into the United States in 2005.

On May 8, 2007, an El Paso federal judge dismissed the grand jury indictment after finding that investigators had ''engaged in deceptive conduct and outrageous tactics'' during proceedings. U.S. District Judge Kathleen Cardone accused the government of committing ''fraud, deceit and trickery'' to indict Posada and freed him from further prosecution in the case.

Posada returned a free man to Miami and has been living at an undisclosed location since then.

On Thursday, Posada's lawyer said his client would not comment but noted that he was ''obviously disappointed like we all are.'' Arturo Hernandez said he planned to ask the appeals court for a rehearing, and that if it is denied, he may appeal to the Supreme Court.

''Those decisions will be made in due course,'' Hernandez told The Miami Herald after the appeals court issued its ruling. ``For now, they are reinstating the case.''

Hernandez said he did not expect federal authorities to rearrest Posada pending all possible new motions.

Dean Boyd, a Justice Department spokesman, would not say what federal authorities plan to do. He issued a written statement saying: ``We're pleased with the ruling and will proceed forward as appropriate.''

Posada, 80, surfaced in Miami in March 2005 after leaving his temporary home in Honduras.

Posada has been sought by the Venezuelan and Cuban governments in connection with allegations he played a role in the bombing of a Cuban jetliner in 1976 that killed 73 people and bombings of Cuban tourist sites in 1997.

Posada has denied he took part in the plane bombing. Initially, Posada was quoted in a New York Times interview as taking credit for the Cuban tourist-site bombings, but he later told an immigration court that he misspoke because his English was poor.

Before he was detained by immigration agents in Miami-Dade in May 2005, Posada told The Miami Herald he had entered the United States with the assistance of a migrant smuggler through the Mexican border at the Matamoros-Brownsville area.

He repeated the same story during interrogations by immigration officials while in detention at an immigrant detention center in El Paso and in interviews for a citizenship application he had filed.

On Jan. 11, 2007, the federal grand jury in El Paso handed up a seven-count indictment charging Posada with making false statements in the application.

The government planned to show at trial that Posada was smuggled from Mexico to Miami aboard a shrimping vessel named Santrina that was manned by several Cuban exiles including Santiago Alvarez, Posada's chief South Florida benefactor. One exile aboard was an FBI informant who would have testified that he saw Posada on the boat as it picked him up in Isla Mujeres, near Cancún, and transported him directly to Miami.

During pretrial maneuvering, Judge Cardone became exasperated with how federal investigators gathered evidence against Posada, accusing them of misusing naturalization proceedings to implicate the exile militant in a criminal case. She also noted that the interpreter in the case had consistently mistranslated questions to Posada and Posada's answers to immigration officials.

''This is not an acceptable practice in interpretation, and it caused severe confusion during the interview,'' Cardone wrote in her ruling, suppressing Posada's statements in the interview and throwing out the indictment.

Federal prosecutors appealed the ruling to the Fifth Circuit Court of Appeals in New Orleans, which has jurisdiction for Texas cases. ''We reverse the dismissal of the indictment, reverse the suppression of the statements made at the naturalization interview, and remand the case for further proceedings,'' the court said in its opinion.

The judges found that despite errors and confusion in translation, neither the interpreter nor Posada misunderstood the key question that led government investigators to conclude that he had lied about how he entered the United States.

For example, the appeals court said, the interpreter properly relayed the key question: ``And when you came to the United States in March 17th or 18th, where did you enter? The court added that Posada clearly understood the question because he answered: ``Matamoros.''