Why Posada Should Face Justice in Venezuela
- From: "?" <kaltter@xxxxxxxxx>
- Date: 11 Aug 2005 08:46:15 -0700
Unfinished Business:
Why Luis Posada Carriles, an Admitted Cuban Exile Terrorist,
Should Face Justice in Venezuela
by Joshua Soren Graae
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 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.
http://www.coha.org/NEW_PRESS_RELEASES/New_Press_Releases_2005/Legal_Commentary_Unfinished_Business_Why_Luis_Posada_Carriles_an_Admitted_Terrorist_Should_Face_Justice_in_Venezuela.htm
.
- Prev by Date: Re: Hiroshima, Nagasaki & Christian morality / Pat Buchanan
- Next by Date: While Children Starve, US Spends $500M on Troops in Africa
- Previous by thread: Re: Hiroshima, Nagasaki & Christian morality / Pat Buchanan
- Next by thread: While Children Starve, US Spends $500M on Troops in Africa
- Index(es):
Relevant Pages
|
