The Bush Administration Charges Luis Posada Carriles — Sort Of

by Kevin Jon Heller

The good news: The Bush Administration has finally brought criminal charges against Luis Posada Carriles — the Venezuelan terrorist and former CIA asset who blew up a Cuban commercial flight in 1976, killing 73 innocent people — narrowly avoiding a federal judge’s February 1 deadline to prosecute or release him.

The bad news: The Bush Administration has charged Posada with making false statements during his naturalization interview in 2005.

A federal grand jury in El Paso, Texas handed down a seven-count indictment today against Cuban exile militant Luis Posada Carriles, charging him with lying about how he sneaked into the United States in March 2005. It is the first time the CIA-trained Posada has been charged with a crime in the United States.

[snip]

The indictment accused Posada, 78, of making false statements to immigration officials about how he arrived in the United States. Posada has insisted he came through the Mexican border, but the indictment asserted Posada entered the United States by sea aboard the shrimping vessel Santrina crewed by Alvarez, Mitat and others.

This is the first time Posada has been criminally charged in the United States, the country he viewed as an ally and safe haven because of his past connections to the CIA and the U.S. military. By indicting Posada, the federal government ensures his continued detention.

Once again, the Administration has demonstrated the hypocrisy of Bush’s (in)famous claim that “if you harbor a terrorist, you’re equally as guilty as the terrorists.” That claim obviously came with the implicit caveat — a kind of mental signing statement — that it’s fine to harbor a terrorist who only kills America’s enemies. “Enemies” like the 73 people aboard Cubana Flight 455 who died at Posada’s hands:

All 48 passengers and 25 crew aboard the plane died: 57 Cubans, 11 Guyanese, and five North Koreans. Among the dead were all 24 members of the 1975 national Cuban Fencing team that had just won all the gold medals in the Central American and Caribbean Championship; many were teenagers.

Several officials of the Cuban government were also aboard the plane: Manuel Permuy Hernández, communist party director of the National Institute of Sports (INDER); Jorge de la Nuez Suárez, communist party secretary for the shrimp fleet; Alfonso González, National Commissioner of firearm sports; and Domingo Chacón Coello, an agent from the Interior Ministry.

The 11 Guyanese passengers included 18 and 19-year-old medical students, and the young wife of a Guyanese diplomat.

The five Koreans were government officials and a cameraman.

The Bush Administration’s coddling of Posada is reprehensible — but far from surprising. After all, as the National Security Archive has documented, the CIA had advance knowledge of the bombing, but did nothing to stop it:

The National Security Archive today posted additional documents that show that the CIA had concrete advance intelligence, as early as June 1976, on plans by Cuban exile terrorist groups to bomb a Cubana airliner. The Archive also posted another document that shows that the FBI’s attache in Caracas had multiple contacts with one of the Venezuelans who placed the bomb on the plane, and provided him with a visa to the U.S. five days before the bombing, despite suspicions that he was engaged in terrorist activities at the direction of Luis Posada Carriles.

[snip]

In addition, the Archive posted the first report to Secretary of State Kissinger from the State Department’s Bureau of Intelligence and Research on the bombing of Cubana flight 455. The report noted that a CIA source had overheard Posada prior to the bombing in late September 1976 stating that, “We are going to hit a Cuban airliner.” This information was apparently not passed to the CIA until after the plane went down.

There is no indication in the declassified files that indicates that the CIA alerted Cuban government authorities to the terrorist threat against Cubana planes. Still classified CIA records indicate that the informant might actually have been Posada himself who at that time was in periodic contact with both CIA and FBI agents in Venezuela.

Who was the Director of the CIA in June 1976? None other than George H.W. Bush.

It is also worth noting that the Bush Administration’s decision to charge Posada with making false statements instead of with destroying Flight 455 is a flagrant violation of the International Convention for the Suppression of Terrorist Bombings, which the US ratified in 1999 and implemented into its domestic legislation in 2002. Article 2 of the Convention provides that:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

[snip]

3. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2; or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

Article 8, in turn, obligates a State Party to either extradite or prosecute a perpetrator who is in its custody (aut dedere aut judicare):

The State Party in the territory of which the alleged offender is present shall… if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

The “any other offence of a grave nature” clause is critical, because it indicates that the Bush Administration cannot discharge its obligations under the Convention simply by prosecuting Posada for making false statements. Making a false statement in a naturalization proceeding, a violation of 18 USC § 1015(a), is a felony punishable by a maximum of five years imprisonment. Bombing a public transportation system, a violation of 18 USC § 2332f, is a felony punishable by death. 18 USC 2332f(c) provides that “[w]hoever violates this section shall be punished as provided under section 2332a(a) of this title.” 18 USC § 2332a(a) then provides, in relevant part, that:

A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction… shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.

The Bush Administration’s refusal to treat Posada as a terrorist, in short, is as unlawful as it is unjust. Given the Administration’s history of turning a blind eye to the misdeeds of its allies, though, should we have expected anything less?

UPDATE: For more on the Bush Administration’s attempts to shield Posada from punishment, see here.

http://opiniojuris.org/2007/02/07/the-bush-administration-charges-luis-posada-carriles-sort-of/

5 Responses

  1. Could they charge someone for breaking a law that was passed 20-some years after the crime was committed?

  2. Will,

    Fair question. The acts committed by Posada have been illegal under international law and US domestic law for decades, so the fact that the Terrorist Bombing Convention was only implemented in 2002 does not prevent its retroactive application. The following is from Jordan Paust, writing in ASIL Insight:

    Since international terrorism and crimes against humanity are international crimes over which there is universal jurisdiction and a universal responsibility either to initiate prosecution of or to extradite those reasonably accused, the United States should also be able to enact new legislation that operates retroactively for prosecution of what were already recognizable international crimes under customary international law and such legislation should not be challengeable under prohibitions of ex post facto laws. The permissibility of such retroactive legislation was affirmed, for example, in the Eichmann case in Israel (1962) (also addressing similar rulings in the Netherlands and Germany), the US extradition decision in Demjanjuk v. Petrovsky (1985), and by the Executive officials applying the 1863 Lieber Code to acts that were already war crimes under customary international law (see DIGEST OF OPS. OF JAG, ARMY 244 (1866); Paust, Bassiouni, et al., INTERNATIONAL CRIMINAL LAW 244-48 (2 ed. 2000)). Certain persons accused of international crimes before the International Military Tribunals at Nuremberg and for the Far East made claims that Charters of the Tribunals incorporating such crimes were violative of ex post facto or nullum crimen sine lege precepts, but the Tribunals correctly ruled that the crimes existed under international law at the time of their commission and no such precepts were violated.

    The bombing also violated the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 974 U.N.T.S. 177 (1971), which the US ratified in 1972.

  3. One quick note: I would be categorically opposed to sentencing Posada to death for the bombing. I do not believe that the death penalty is ever just or appropriate. I pointed out the availability of such a sentence for the bombing solely to make the point that charging him with making false statements is both morally insulting and in violation of the US’s international obligation.

  4. Does the treaty really require an indictment?

    to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.

    Would this requirement not be fulfilled if the issue was handed over to a prosecutor, who then declined to file charges due to lack of evidence, etc? Are we sure this is not what has taken place?

    Alternatively, he can still be charged with the crimes aforementioned. The state just had to charge him with something by the deadline so he didn’t walk. Considering his friends just got contempt charges for refusing to talk to the grand jury, it may be they simply lack enough material to indict for those charges (Or it remains classified.)

  5. Oh, the humanity! How does Prof. Heller continue to get up in the mornings in the face of such injustices. ;-)

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