Issue #16 The Man Who Could Not Take a Hint

Luis Posada Carriles, a man who has admitted involvement in terrorist acts, ended up in federal custody May 17 and now faces immigration charges and potential long-term detention.

His case presents the Bush Administration with a conflict between the clear moral standards it applies to the war on terrorism and its political impulse to avoid conflict with the Cuban American community.

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Posada entered the United States illegally in March planning to seek asylum, but on April 13 an anonymous U.S. official told the Miami Herald that if he presented himself, he would be detained and processed for deportation.

Posada chose to remain in Miami, and his lawyer filed an asylum petition. The Venezuelan government indicated that it would seek Posada’s extradition to stand trial for his alleged involvement in a 1976 bombing of a Cuban airliner that killed 73 people, among them 24 members of Cuba’s national fencing team.

Then on May 3, Assistant Secretary of State Roger Noriega responded to questions about Posada. He indicated that the U.S. government had no interest in welcoming someone with a criminal background. Notwithstanding statements from Posada’s lawyer and others that confirmed his presence on U.S. soil, Noriega said that accounts of Posada’s presence might be fabricated – “I don’t even know that he is in the United States,” he said.

Had Posada then departed quietly, U.S. officials could have said that any legal issues concerning the presence of an accused terrorist on U.S. soil remained hypothetical.

But Posada, not taking a hint, remained in the United States and proceeded to address the media.

He granted an interview to the Miami Herald, published May 16, recounting the ease with which he brushed away U.S. officers who asked for his immigration papers on the bus that brought him from Texas to Florida. Posada was confident that federal officials were not searching for him.

Then, on May 17 he gave a press conference in a warehouse near Hialeah, and his remarks were soon carried on local television. He implied that he might withdraw his asylum petition and leave the country, and that may have been his intention, but by that time his public appearances were making a mockery of the Department of Homeland Security. Within hours, U.S. agents arrested Posada at his residence – after his asylum petition was withdrawn and, according to his lawyer, as he was preparing to leave the United States.

Now his lawyer says Posada will renew his bid for asylum, and U.S. officials are evaluating his case.

What is known about Posada is that he has long espoused violence as a tool to bring down Cuba’s communist government.

– He told the New York Times in 1998 that he had organized a series of bombings in Havana hotels whose purpose was to “create a big scandal so that the tourists don’t come anymore. We don’t want any more foreign investment.” As for the Italian national Fabio DiCelmo, who was killed in the 1997 bombing at the Copacabana hotel in Havana, “It is sad someone is dead,” Posada said, “but that Italian was in the wrong place at the wrong time.”

– Posada was tried and acquitted in Venezuelan courts on charges related to the 1976 airliner bombing. He was held pending retrial on a prosecutor’s appeal, and escaped from prison. Those charges, still pending, are the basis of Venezuela’s current extradition request. Recently released FBI documents tie Posada to this crime, and a retired FBI agent who investigated it told the New York Times, “There was no doubt in anyone’s mind, including mine, that he was up to his eyeballs” in it. A former U.S. prosecutor told the Miami Herald that Posada was an “active participant” in a meeting where the airliner attack was discussed.

– In April 2004, Posada was convicted in a Panamanian court of endangering public safety and received an eight-year prison sentence. Posada and three associates had been caught in Panama with 33 pounds of plastic explosives; it was alleged that they intended to kill Cuban President Fidel Castro during a summit meeting there. Posada served a few months and was pardoned by Panama’s outgoing President, Mireya Moscoso.

All signs indicate, then, that President Bush is facing the same issues that his father faced when Orlando Bosch, a convicted terrorist, arrived on U.S. soil in 1989. After the State Department was unable to find a country that would accept Bosch, and with Florida leaders such as his son Jeb and Representative Ileana Ros-Lehtinen urging his release, President George H.W. Bush overruled the Justice Department and allowed Bosch to remain in the United States.

The stakes are higher today, now that terrorism has materialized as a greater threat to American security. President Bush rightly demands that other governments make no excuses for terrorists, regardless of their political cause, and that they cooperate fully in bringing terrorists to justice. “If you harbor terrorists, you are a terrorist,” President Bush has said.

The immigration charge that Posada now faces, and the government’s effort to hold him without bond, seem intended to keep Posada in detention until a permanent solution is found. Options include:

Granting asylum. If Posada is treated like other asylum seekers, he could find himself in detention for years while his case is judged. Given his background, it seems unlikely that Posada would win asylum here. Asylum is granted to persons who fear that if they return home (in Posada’s case, to Cuba or Venezuela; he is a dual citizen) they will be persecuted for their political views. Fear of facing charges for violent crime does not qualify an applicant for asylum, and a record of violent crime can disqualify an applicant that would otherwise receive asylum.

Finding a third-country safe haven. According to press reports, Administration officials are inquiring whether Mexico or a Central American country would accept Posada. Depending on the country, this could shield Posada from prosecution, but it would surely expose the government of his new host country to criticism that it harbors a terrorist.

Extradition/trial. Cuba’s government says it wants Posada to face the charges against him but is not seeking his extradition to Cuba, and would be satisfied with a proceeding in a Venezuelan court or an international tribunal. Venezuela has requested his extradition. The Administration has stated that it has a policy of not sending individuals to face trial in Cuba or in countries acting on Cuba’s behalf. If so, this policy is new: In 2003, the Administration sent twelve Cubans back to Cuba to face trial for hijacking a Cuban vessel; they were sent back after talks in which Cuban authorities assured the State Department that they would face a maximum possible sentence of 10 years. If the Administration decides it wants Posada to face terrorism charges, its options seem to be to send him to Venezuela, where the judiciary is under considerable political influence, or to pursue a more creative option involving an international tribunal or the courts of another country (e.g. Italy) that could claim jurisdiction based on the loss of their citizens in a crime tied to Posada.

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Making Posada face justice is easier said than done, to be sure. But for President Bush, the stakes are larger than Posada’s case, and certainly larger than Florida politics.

The President’s greatest asset as an international leader is the clarity and conviction of his message, and the fact that it is backed by a will to act. In the war on terrorism, President Bush has rightly set unambiguous moral standards for others to meet, and it is reasonable to expect that governments around the world will watch to see if he lives up to them now.

The President has many options in the Posada case, but in terms of public perceptions, his options may boil down to two: make Posada face justice, or make him comfortable in a safe haven here or abroad. Failure to bring Posada to justice would surely be interpreted as a politically motivated act, especially because – quite apart from the heated campaigns being waged against Posada in Caracas and Havana – the public case against him is increasingly being built by declassified U.S. documents and statements of former U.S. investigators. President Bush therefore risks creating a political exception that other countries could invoke when America seeks their cooperation in anti-terrorist actions.

Finally, there is the matter of the message that will be sent to the Cuban people when the Posada case is decided. It’s a safe bet that most Cubans know that only a small and fading minority of Cuban Americans would launch violent attacks from abroad to spark political change in Cuba. What they will find out is how President Bush, as he promotes democratic change in Cuba, will treat one member of that minority who still does not renounce violence.