Posada Carriles is a Free Man

It began with a bang — the explosion of an airplane with 73 innocent lives aboard — and ends with a whimper: on Tuesday, citing the “universal sense of justice,” U.S. district judge Kathleen Cardone threw out the false-statement charges against Luis Posada Carriles, ordered his electronic bracelet removed, and watched him walk out of the courtroom a free man. According to Judge Cardone, the government’s questioning of Posada during his naturalization interview involved such “fraud, deceit, and trickery” that her only choice was to dismiss the indictment:

Cardone threw out the interview with immigration authorities that was the basis of the charges against Posada. The interview was poorly translated for him, she found, and “No effective communication existed between defendant and the interviewers.”

“In light of the fact that the indictment in this case is based upon statements made during the naturalization interview, this court finds that the interpretation is so inaccurate as to render it unreliable as evidence of defendant’s actual statements,” she wrote.

In addition, Cardone condemned what she called government manipulation in the case, noting that Posada’s naturalization interview was unusual in that it stretched eight hours over two days, as opposed to the usual maximum of 30 minutes.

Cardone called the interview a “pretext for a criminal investigation.”

Although “warnings” were provided to Posada at the beginning of the interview, she wrote, they were read to him in English without any translation, and his attorney continually was told that if Posada exercised his Fifth Amendment right against self-incrimination, it would result in termination of the interview.

“More importantly,” she wrote, “defendant did not receive an explanation of the true import of the government’s inquiry.”

The “defendant had few options, and the government took advantage of his situation and manipulated it to serve its own ends,” she wrote.

She said the mere fact that he was questioned about bombings “belies the argument that this was a routine naturalization interview.”

I’m not an expert on immigration law, so I hope Peter will weigh in on the decision. But it strikes me that this may well be one of the most pro-defendant naturalization decisions ever — and one that quite literally makes no sense at all. A few comments:

• Regarding the poorly-translated interview: Posada speaks perfect English. He even once worked as a translator for the U.S. Army. And, of course, Posada’s lawyer was present during the interview, presumably ensuring that he understood what he was being asked.
• Regarding the length of the interview: I assume that most naturalization interviews do not involve aliens who have previously admitted to bombing hotels in Havana and who are responsible for blowing up a civilian airplane…
• Regarding the interview being a “pretext” for a criminal investigation: all naturalization interviews are to some extent criminal investigations. One of the criteria for naturalization is “good moral character,” and the naturalization regulations specifically state that “terrorist acts” and crimes “against a person with intent to harm” are evidence (imagine that!) of a bad moral character. So there was nothing unexpected or sinister about the interviewers’ questions concerning Posada’s well-documented criminal history.
• Regarding the right to silence: Posada was repeatedly informed that he had a right to silence — and he made use of it a number of times during the interview. What he didn’t have was a right to naturalization: the Supreme Court held in United States v. Ginsberg that “[n]o alien has the slightest right to naturalization unless all statutory requirements are complied with.” Posada thus had a perfectly legitimate choice: exercise his right to silence and not satisfy naturalization’s good-character requirement, or waive his right and answer the interviewers’ questions in an attempt to prove his eligibility for naturalization. The fact that he chose the latter option — and repeatedly lied in the process — thus in no way infringes upon his Fifth Amendment rights.

I wish I could say that I am surprised by the decision, but I have been predicting that Posada would walk free for more than a year. The Justice Department says it is “reviewing Cardone’s decision” for possible appeal. I’m not holding my breath.