He’s Here to Stay and May Soon Be Free
The hearing to determine whether or not Luis Posada Carriles will be extradited to Venezuela took an expected, but still dramatic, turn today . . .
The hearing to determine whether or not Luis Posada Carriles will be extradited to Venezuela took an expected, but still dramatic, turn today. Posada, a terrorist trained and supported by the United States during the Cold War era to harass and kill Leftists in Central and South America, fled to Miami after release from a Panamanian prison in November, 2004. Posada’s personal and professional goal has always been the assassination of President Fidel Castro, and his Panamanian conviction is connected to the possession of 40 pounds of plastic explosives in an attempt on Castro’s life during a state visit to Panama in 2000.
Now 77 years of age, and showing signs of ill health, Posada is in United States custody for entering the country illegally. In an August 30th hearing, Posada produced Joaquín Fernando Chaffardet Ramos as a witness to claim that if returned to Venezuela, Posada would be subjected to torture. The hearing today was scheduled to provide the U.S. Government with an opportunity to rebut the evidence of Chaffardet and to show that Posada would most likely not be subjected to torture by the government of President Hugo Chávez. But the United States refused to put on rebuttal evidence, handing Posada exactly what he wanted; a life in the United States.
Counsel for the United States, Gina Garrett-Jackson, stated at the beginning of the hearing that she would put on no evidence with respect to the possibility or probability of torture if Posada were returned to Venezuela. In determining Posada’s extraditability, the court used a two-step process. The first step is to determine whether or not Posada is subject to withholding of removal under statute. Withholding of removal is similar to asylum, but it is more tenuous than asylum and people under this status may not leave the United States and return, nor apply for permanent legal residence. Posada is not eligible for withholding, since he was convicted of a serious nonpolitical crime in a foreign jurisdiction, and because of his terrorist activities over four decades on behalf of the United States and other countries. Posada’s attorney, Matthew Archambeault, waived Posada’s claim under this step and argued that therefore all of the evidence submitted concerning Posada’s terrorist activities is irrelevant and should not be admitted into the record. In a rare moment of vigorous prosecutorial spirit in the case, Garrett-Jackson argued that all of the evidence should come in. Judge William Abbott said that he would address the matter in a written decision, but that he is inclined to agree with Posada’s position. The judge may conclude that if the withholding argument is waived, then there is no need to place cumulative or irrelevant evidence in the record concerning a matter not in issue. But that would mean that all the horror Posada is and was would be swept from the record and he would not even be held accountable on paper for his legacy of murder and violence.
The next step, under the Convention Against Torture, is to determine if a person’s extradition must be deferred because the country seeking extradition is likely to torture the returned subject. Since Posada put on at least some evidence that he may be subjected to torture if extradited to Venezuela, and the United States put on no evidence whatsoever to the contrary, there is virtually no doubt that Posada will win on this point. Extradition of Posada will be indefinitely deferred and the acquiescence on this point by the U.S. Government made the entire hearing a sham. Bush saved Posada from extradition, his brother Jeb from the wrath of Cuban exiles, the U.S. Government from major potential embarrassment, and took advantage of an opportunity to malign Hugo Chávez at the same time. But what of the "war on terror"? On this day, in this part of West Texas, for this terrorist, the war was suspended.
It is at this point that Garrett-Jackson read a curious statement on behalf of the United States. In that statement Garrett-Jackson said the "United States continues to have concerns about Venezuela and human rights abuses," and that while the U.S. Government had "no specific information that Posada himself would be tortured," it believed that he would indeed be tortured if returned to Venezuela. Garrett-Jackson then noted that while the Venezuelan constitution prohibits the extradition of citizens, it is probable that Posada would be subjected to torture by Cubans invited in by the Chávez government. She claimed that under the Venezuela-Cuba Mutual Legal Assistance Treaty, Chávez could invite Cubans to Venezuela to interrogate, and torture, Mr. Posada.
Just who wrote the statement is a mystery, though it surely was vetted, if not drafted, by people high up in the Bush Administration. The United States was clearly eager to use the forum to make disparaging remarks about Venezuela and President Hugo Chávez and the relationship between the Chávez government and Cuba. I asked Archambeault if he knew who had authored the statement, and he said that throughout the entire affair he never knew who U.S. Government counsel answered to. He said that Garrett-Jackson and her team would simply say that they had to talk with people "upstairs" whenever an impasse arose between the two sides. He joked at one point that it seemed as if even government counsel did not know who they were taking orders from. And this may be the case, since it seems perfectly plausible that the White House directed the courses of action in this case through intermediaries in the Department of State and the Department of Justice.
Archambeault and Posada were "quite pleased" with the events of the day, and Archambeault said that he will move for Posada’s release after Judge Abbott’s final decision is entered. Since the U.S. put on no evidence rebutting Chaffardet, there would seem to be little grounds for an appeal. The United States, of course, has no desire to appeal the decision in the case, and Judge Abbott will find that Posada’s extradition must be deferred indefinitely.
The real struggle in the case seems to be over Posada’s potential release from prison. Garrett-Jackson wanted as much evidence as possible of Posada’s past deeds in the record in order to apparently establish him as a threat to the national security of the United States and as a terrorist. But since Archambeault waived the issue with respect to withholding, the judge may require that the U.S. Government’s evidence be ignored. In that case, the way may be clear for Posada’s release. Without a finding that Posada is a terrorist or a threat to national security, it will make it much easier for him to win his freedom.
