Posada Carriles Demands Release

Luis Posada Carriles, the Cuban-born terrorist who is currently being held in federal detention in Texas, has filed a writ of habeas corpus in federal district court seeking his release. The writ claims that his detention violates Zadvydas v. Davis, 533 U.S. 678 (2001), in which the Supreme Court held that the INS — now ICE — cannot indefinitely detain an alien who has been ordered removed from the US but cannot be repatriated to his birthplace or sent to a third country.

Unfortunately, Posada’s habeas petition may well succeed. As construed by the Court in Zadvydas, the federal post-removal-period detention statute, 8 U.S.C. § 1231, only permits the government to detain an alien for six months without cause. After six months, the government must either release the alien or show that there is a “significant likelihood” of removal in the “reasonably foreseeable future”:

We do have reason to believe… that Congress previously doubted the constitutionality of detention for more than six months. Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the “reasonably foreseeable future” conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.

Posada has been detained since May 17, 2005, more than ten months, and his habeas petition makes a strong case that it is unlikely he will be removed from the U.S. anytime soon — an immigration judge has already ruled that he cannot be extradited to Cuba, and no other country has agreed to take him. So unless the government has some kind of ace up its sleeve, it may have no choice but to release Posada.

There is, however, one possible weakness with Posada’s claim worth noting: his well-document history of terrorist activity may give the government greater authority to hold him beyond six months, regardless of the likelihood of his removal. The Zadvydas Court noted that the case before it did not involve

terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security. The sole foreign policy consideration the Government mentions here is the concern lest courts interfere with “sensitive” repatriation negotiations.

Posada is aware of this possible national-security exception, so his habeas petition goes to great lengths to document his two decades of work on behalf of the CIA. Here’s a snippet:

56. … from approximately 1967 through 1986, the Petitioner, on several occasions, was a compensated agent of the Central Intelligence Agency (“CIA”) who was deemed as “an operational interest.” Exhibit H.

57. … throughout various periods up until 1986 the Petitioner was involved in a clandestine, yet however U.S. backed operation headed by Lt. Colonel Oliver North, same operation later known as the “Iran-Contra Affair.”

[snip]

60. The Petitioner, under the alias of “Ramon Medina,” served the national security interests of the United States by clandestinely serving in the “Southern Front” theatre of operation. Exhibit K.

61. The clandestine U.S. backed operation advanced the interests and the national security of the United States of America in Central and South America by blocking the spread of communists and totalitarian backed guerrillas and insurgents towards the United States.

As I noted in my earlier post, Posada’s CIA connections almost certainly explain why the government made little attempt at his immigration hearing to rebut his claim that he would be tortured if extradited to Cuba or Venezuela. It will be interesting to see if the government takes his habeas petition any more seriously — or if it simply intends to allow Posada to slink away into the night, final payment for services rendered.

The full text of Posada’s habeas petition, including the supporting exhibits, is available here.