Posada Carriles Could Walk on February 1

The moment of truth for Luis Posada Carriles is approaching: U.S. District Judge Philip Martinez held last Friday that the Bush administration has until February 1, 2007, to either prosecute or release Posada. Prosecution is looking increasingly unlikely: although the administration urged the judge in October to keep Posada in detention, it has consistently refused to bring criminal charges against him or formally designate him as a terrorist.

Even if the Bush administration does decide to prosecute Posada, it may not be able to convict him. In a recent essay in the Washington Post, Anne Louise Bardach, a journalist who has been writing about Posada for years, revealed that the FBI closed Posada’s case in 2003 and then destroyed much of the evidence that the government would need to prosecute him:

In August 2003, the Miami bureau of the FBI made the startling decision to close its case on Posada. Subsequently, according to FBI spokeswoman Judy Orihuela, several boxes of evidence were removed from the bureau’s evidence room, or the “bulky,” as it is known. Among the documents that disappeared was the original signed fax that Posada had sent to collaborators in Guatemala in 1997, complaining of the U.S. media’s reluctance to believe reports about a series of bombings in Cuba, which he hoped would scare tourists and investors away from Castro’s island.

I had shown Posada a copy of this fax during my interviews with him. The fax had been intercepted by Antonio Alvarez, a Cuban exile and businessman who had shared office space with Posada in Guatemala in 1997. Alarmed, Alvarez had notified agents from the FBI’s Miami bureau, but when they took no action, he had turned to the Times.

[snip]

Hector Pesquera, the special agent in charge of the Miami FBI bureau at the time, showed little interest in Posada’s case. To his agents’ distress, he enjoyed socializing with Miami’s hard-line exile politicians, and denied agents’ requests for wiretaps on Bosch, known as the godfather of the paramilitary groups, as well as other militants suspected of ongoing criminal activity. Pesquera shuttered investigations into exile militants, agents say, before retiring in December 2003.

Without the materials that were removed from the evidence room, which also included cables and money transfers between Posada and his collaborators in the Cuban bombings, a criminal prosecution of Posada is severely hobbled. Orihuela, the FBI spokeswoman, explained that “the supervisory agent in charge and someone from the U.S. attorney’s office would have had to sign off” before evidence is removed and destroyed. She confirmed that the approval to dispose of the evidence was given by the case agent on Posada, who happened to be Ed Pesquera — Hector’s son.

Stay tuned.