Posada Carriles is a Free Man

by Kevin Jon Heller

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.

http://opiniojuris.org/2007/05/09/posada-carriles-is-a-free-man/

5 Responses

  1. Professor Heller,

    I have to say that this post is fairly inconsistent with your many others advocating for the use of the civilian court systems to try terrorists. When you deal with terrorists in the civilian system, sometimes they get off on either “technicalities” for lack of a better term or a judge simply makes a wrong decision.

    I wonder why this result is so objectionable to you and why you are applying two different standards. You seem very eager to prosecute Carriles, less so with Islamists …

    In fact, I found this comment the most troubling:

    “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…”

    Now, the length of the interview is a common cited factor in judging the voluntary nature of any admissions, either in the naturalization context or in a criminal one. From your comment, you seem to dismiss Carriles rights because he is a terrorist, i.e. he is judged by a different standard vis-a-vis the length of his interview “for blowing up a civilian airplane.”

    In your reponse to previous comments, you lambasted a commentator who argued that different rules should apply in terrorist cases (See the comments on Lynn Stewart). Yet here, you go out of your way to apply the length rule differently to Carriles, because he is a terrorist.

    What am I missing, or have you jumped on the terrorists are not criminals bandwagon?

  2. NewStream Dream,

    Fair questions, but I do not believe that my current post is in any way inconsistent with my previous ones.

    First, I do advocate using the civilian system to try terrorists. And yes, sometimes the civilian system acquits the guilty. But you seem to confuse my support of the civilian system with a desire to see terrorists acquitted. Nothing could be further from the truth — if, in fact, the terrorists in question are guilty. I am delighted, for example, that Ramzi Yousef and Sheik Abdel-Rahman are behind bars; they were convicted after a fair trial on the basis of overwhelming evidence. Similarly, there is absolutely no doubt that Posada bombed Havana hotels (he admitted it) and there is certainly proof beyond a reasonable doubt that he blew up Cubana flight 455 (see my previous posts). Posada thus no less deserves to be tried for terrorism (or at least the false statements) and sent to prison than Yousef and Abdel-Rahman.

    Second, there is nothing troubling about my comment regarding the length of the interview. Posada did not claim that he involuntarily confessed his crimes; on the contrary, he lied about his criminal past in order to wrongfully gain naturalization. My point — a valid one, I think — is that it is absurd to assume that the naturalization interview of an admitted terrorist is going to be no longer than the interview of an ordinary alien. So what rights am I trying to deny him? The right to lie? The right not to have his claim to naturalization carefully scrutinized? And where in the naturalization regulations is this “length rule” I am supposedly refusing to apply to him?

    You are absolutely right that I believe the same rules should apply to terrorists and to non-terrorists. What you seem to misunderstand is that I want those rules enforced against both, not enforced only against Posada — which means that I do not want either Islamic terrorists or Posada to be acquitted because of a completely implausible interpretation of the rules. All terrorists should be prosecuted. All guilty terrorists should be convicted. All innocent terrorists should be acquitted. What could be less inconsistent than that?

  3. Kevin,

    Yes, this sounds like an unusual posture in an immigration fraud case, which aren’t typically rejected out of a “universal sense of justice” (where would much of our immigration system end up against that metric?).

    What’s strange here is some idea that the interview was coerced. Since Posada was a permanent resident alien at the time of the interview, he didn’t have to apply for naturalization. He could presumably have walked out of the interview if he thought it was starting to look risky. Which is all by way of supporting your point that the Fifth Amendment stuff is all out of place in this context.

  4. Isn’t a noncitizen subject to investigation for any grounds of inadmissiblity or deportability (including terrorism-related grounds) when attempting to naturalize? Don’t many of those removal grounds potentially expose the noncitizen to criminal liability? So I tend to agree that calling the interview a pretext for a criminal investigation doesn’t get the fifth amendment analysis anywhere. It seems reasonable though to hold that any waivers of his privilege are vitiated by inadequate translation (assuming the circumstances show he didn’t understand the import of his waiver). Noncitizens, even LPRs, have struggled so much to gain due process and other constitutional protections afforded to citizens, that it’s a relief to see such a vigorous judicial application of the privilege, however misguided.

    It just seems absurd, however, in the age of national securitization of immigration law, that the government is only pursuing charges that Carriles fraudulently made false statments in an attempt to gain naturalization. The material support for terrorism ground of removal has been applied in truly perverse ways to bar asylum for refugees fleeing the worst regimes. To get really outraged see Matter of S.K.: http://www.usdoj.gov/eoir/vll/intdec/vol23/3534.pdf – thankfully they are issuing limited waivers now for these situations). So it’s undeniable that the US is soft-pedaling on Carriles’s case because he committed a type of terrorism that the US approves of ( or is at least apathetic toward). The DOJ should prosecute him (I doubt he will get a fair trial in Cuba or Venezuela, and the US would probably violate its nonrefoulement obligations under the Refugee Protocol and CAT if it extradited him).

  5. Anon,

    Thanks for the great points. Just one clarification: a federal judge has already held that CAT prohibits the US from extraditing Posada to Cuba and Venezuela. That’s why he will walk free unless the DOJ prosecutes him — no other country has agreed to take him and the government can’t hold an alien forever.

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