The Posada Case ? Goose or Gander?

By Bill West

On Monday, June 13, accused illegal and suspected terrorist alien Luis Posada Carriles, who was born in Cuba and is a naturalized Venezuelan citizen, will have his initial hearing before an Immigration Judge in El Paso, Texas, where he is currently being detained without bond pending removal (deportation) proceedings brought by the Bureau of Immigration and Customs Enforcement (ICE).

As reported extensively in the media, including in the CT Blog, Posada is suspected of being involved in a string of bombing attacks against Cuban tourist hotels in 1997. He admitted to that involvement in a New York Times interview in 1998 and later retracted that admission. In a recent interview with the Miami Herald, he refused to either admit or deny his involvement with the attacks. Posada has also been linked to a 1976 bombing of a Cubana airliner that took off from Venezuela, though he was acquitted twice there in that case and escaped before prosecutors could finish their appeal of the latest acquittal under Venezuelan law. He is currently wanted by Venezuela, which is seeking his extradition from the US.

Posada says he intends to seek political asylum in the United States through the Immigration Court system. He has his supporters, especially in the influential Cuban American community of south Florida, where some view him as a patriotic freedom fighter. Others view Posada as a terrorist alien, and believe the US Government is correct in seeking to detain and deport him as any other suspected terrorist alien should be. So far, it appears Posada will have his case play out in the Immigration Courts and perhaps beyond.

For now, ICE has charged Posada as a simple illegal entrant, as Posada has claimed he surreptitiously crossed the US-Mexican border a few months ago and made his way by bus to south Florida, where he essentially �hid in plain sight� until his recent arrest by ICE agents. He was then transferred to an immigration detention facility in El Paso.

Among Posada�s more colorful exploits in his personal history is the fact that while he lived in Venezuela during the 1970s, he became an officer in the Venezuelan secret police, known as the Direcci�n de Servicios de Inteligencia Policial (Intelligence and Preventive Services Directorate), or DISIP. Posada has stated in interviews that part of his duties with DISIP was to identify and root out communist, especially Cuban-sponsored communist, subversives within Venezuela and bring them to justice. He was, by his own admission, a counter-intelligence officer within the Venezuelan government during that time.

Why is this important relative to his ongoing immigration case? In 1996 in Miami the INS worked a spy case with the FBI. One of Castro�s espionage operatives named Jorge Luis Rodriguez became identified and was investigated. Rodriguez was based in New York but came to south Florida to ply his spook trade. It turned out Rodriguez was mostly spying on anti-Castro exiles and not really on the US Government, at least at the moment the Feds got onto him and developed their evidence against him. So the US Attorney�s Office declined criminal prosecution, since spying on civilian exiles didn�t quite rise, at least then, to what seemed to be a solid criminal prosecutable offense.

But the FBI had an aggressive INS Special Agent working with them on the case. And the INS had an equally aggressive and innovative prosecutor/District Counsel named Dan Vara, who is now ICE Chief Legal Officer in Orlando, and along with me (I supervised the INS agent at the time) we looked at the matter with the Bureau and came up with a plan to charge Rodriguez on a never-before-used deportation violation. The FBI loved it; the INS High Command thought we were nuts (but senior INS management was generally more the problem than the fix), and we did it anyway.

The legal theory in the Rodriguez case was based on the national security deportation provisions within the Immigration and Nationality Act found at 8 USC 1227(a)(4), which are quite broad and in the espionage subsection states,

�Any alien who has engaged, is engaged, or at any time after admission engages in -
(i) any activity to violate any law of the United States
relating to espionage or sabotage�[is removable]��

Unique to this theory was that Vara found 50 USC 851 in the bowels of Federal law that relates to espionage. This obscure statute (though not so much any longer) relates to the registration of foreign agents. It requires:

��every person who has knowledge of, or has received instruction or assignment in, the
espionage, counter-espionage, or sabotage service or tactics of a government of a foreign country or of a foreign political party, shall register with the Attorney General��

Of course, no self-respecting foreign spy registers with the Attorney General, so they violate the statute.

In the Rodriguez case, he was charged in deportation proceedings, and even fighting the institutional resistance of what was then the INS General Counsel�s Office to back off from the case (they really feared anything unusual) Vara, with the support of the FBI and a few allies in the Department of Justice at the time, managed to march on with the prosecution in Immigration Court. The Government ultimately prevailed at the appellate level in the case and it became a precedent for future deportation cases.

The Miami District Office of the INS successfully pursued and prosecuted several other Cuban spies in deportation proceedings under the same legal process. A former East German Stasi secret policeman who had taken up residence in Gainesville, Florida was equally identified, located, charged and deported. DOJ decided to get into the foreign agent registration prosecution game with the takedown of the infamous Cuban WASP spy network in Miami. Those spies were targeting the USG, but included in the felony indictment was the criminal version of Vara�s prosecution theory (18 USC 951). The WASPs were convicted�it worked.

This criminal prosecution effort has most recently been seen and succeeded in the UN Oil for Food scandal, with the first conviction against naturalized US citizen Samir Vincent and the pending indictment against South Korean businessman Tongsun Park. It�s another example of the Feds employing aggressive and innovative investigative and prosecution techniques against persons and organizations deemed to be threats, or potential threats, to national security.

Which brings us back to Luis Posada Carriles. While the Government may well have a strong case against him for being an illegal entrant, and there may well be viable evidence that he engaged in activities that constitute terrorism, these are of course issues to be determined in court. Charging him as a simple illegal entrant may result, especially if he appears before a liberal Immigration Judge (and there are many of those), in his being released on bond while his case is adjudicated. Posada, by his own admission and demonstrated presumably by other evidence the Government will be able to obtain, was a member of DISIP, a foreign secret police organization wherein he conducted counter-intelligence operations.

Posada, by virtue of his membership in and activities with DISIP, would appear to potentially be in violation of 50 USC 851 and therefore subject to the aforementioned national security removal (deportation) section of the Immigration and Nationality Act. That would also mean, under the law and regulations as they currently exist, Posada is not statutorily eligible for release on bond while he is pending those deportation proceedings.

In the past, the Government has appropriately and aggressively targeted Castro�s communist spies, and even a former East German version thereof, under this formerly virtually unknown set of statutes and prosecution theory. Those efforts have been notably successful, and have been expanded to include criminal prosecution against other spies and nefarious operatives linked to Saddam Hussein.

So far, the Feds are pursuing the Posada case as the evidence may be deemed appropriate. That said, there is at least a prima facie indication Posada would be subject to the aforementioned unregistered foreign agent national security violations. If so, it will be interesting to see if the Government pursues that line in the prosecution. As the old saying goes, what�s good for the goose�

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