Prepared Statement of
Ann Louise Bardach
Author, Journalist
House Committee on Foreign Affairs,
Subcommittee on International Organizations, Human Rights and Oversight
I first began reporting
on the Cuban exile militant arena in the early 1990’s when I was a staff writer
for Vanity Fair magazine. In 1998, I
co-authored a five part series in the New
York Times on the exile militant Luis Posada Carriles and his cohorts in
1998. I also wrote extensively about Posada in my book Cuba Confidential: Love and Vengeance in Miami and Havana, and have done considerably more research for my
new book Without Fidel (to be
published in 2008). Additionally, I wrote a 10,000 word investigative article
on the 1976 bombing of the Cubana
airline in The Atlantic Monthly in November
2006 http://www.theatlantic.com/doc/200611/cuba
, http://www.theatlantic.com/doc/200610u/posada-qa?ca=0iOPA9JtNFepUh54A%2BWhzsNXNmaGrDtEWQxfYBXgFzY%3D
Several other pieces by me on Luis Posada have appeared in The Washington Post and other newspapers. To facilitate tracking this complex story, what follows is a brief history of Mr. Posada’s career as an anti-Castro militant based on CIA, FBI, and State Department memorandum.
Posada’s Documented History
Mr.
Posada entered the
In
March 1963, Mr. Posada enrolled in U.S. Army officer candidate school at
After leaving the Army, Mr. Posada
joined Junta Revolucionaria Cubana, an anti-Castro organization, and built a
military training camp in
Mr. Posada “has been of operational interest to [the Central Intelligence] Agency since April 1965” and “was a member of the crew of a motor launch which was to be used January 1965 by the Junta Revolucionario Cubana to infiltrate JURE leader Manuel Ray Rivero into Cuba.” (Exhibit 7).
Mr. Posada received approximately $300 per month from the CIA and was selected to head of three anti-Castro organizations. (Exhibit 8).
Mr. Posada has been recognized as “a former Agent of CIA” who “was amicably terminated in July 1967.” (Exhibit 10).
Mr. Posada then became head of the Counterintelligence Division of the Directorate for the Services of Intelligence and Prevention (DISIP) for the Venezuelan Civilian Security Service, but that he lost his position with DISIP in March 1974 as a result of a change in the Venezuelan government. (Exhibit 11).
Mr.
Posada became of intense interest to the CIA shortly after the
A
. The CIA and FBI memoranda as well as numerous press reports show that ultimately, Mr. Posada was charged with Venezuelan authorities with the bombing, tried and acquitted in a military court, but the acquittal was deemed invalid due to lack of jurisdiction and in 1985, while awaiting trial in a civil court, Mr. Posada escaped from a Venezuelan prison after eight years of incarceration. He remains the subject of an extradition request from the Venezuelan government for his alleged involvement with the bombing.
After
his escape from
In
September, 1989, Mr. Posada moved to
On
The New York Times Series
The background of the
New York Times series concerned a series
of eleven hotel and restaurant bombings that went off in
The bombings attracted
extensive national media attention. For
example, the Los Angeles Times published an article on
The Beginning of The New York Times Series
New York Times Caribbean Bureau chief, Larry
Rohter, and I began work on a series about Cuban exile militant activities in early 1998. The Times published our first article,
Plot On Castro Spotlights A Powerful Group, on
In this first article, Larry Rohter and I reported that the lawyer representing Mr. Alfonso, Ricardo Pesquera, warned that if the Government tried his client, “we will go after the Government very strongly” and “attack their hypocrisy.” We also reported that Mr. Pesquera had a sheaf of declassified CIA documents about Government efforts to overthrow the Cuban leader and complained that “for 30 years they tried to kill Castro and now they say others can't do the very same thing they were doing.” (Exhibit 17).
The first article also
reported that in August 1997, CANF
“startled some in
In our New York Times article was an interview with Angel Alfonso Aleman of
My Interview
with Luis Posada
In June 1998, a
colleague at Vanity Fair, where I worked for 10 years as a Contributing
Editor, put me in touch with a Cuban businessman living in
Around the same time The
Miami Herald published an article on
A FBI agent who worked on the
Two weeks after my
I did speak with Mr.
Posada again by phone several times and arranged to meet him for an
interview. Prior to meeting with Mr.
Posada, I had gone to
Mr. Rohter and I then
flew to
During that first day, Mr. Posada spoke for several hours and I recorded much of the conversation. I continued to conduct taped interviews of Mr. Posada over the next several days. Not infrequently, Mr. Posada would turn the tape recorder off so that he could tell me things that would not be recorded. I showed Mr. Posada the “Solo FAX” during one of the interviews and he seemed troubled by it and fretted that it could cause him problems with the FBI.
On
my last day in
The absence of freedom of expression, of freedom of movement for a hungry people oppressed and terrorized by communist repression … This gives all free Cubans a right to take up arms against the tyrant, using violence or whatever means at our disposal to derail this terrible system and bring freedom to our country.
At the bottom he had written, in English: “He does not admit the bombs in the hotels but he does not deny either.” (Exhibit 19).
The July 1998 New York Times Articles
On
the basis of our review of declassified
CIA and FBI materials, dozens of interviews we had conducted in
Luis Posada Carriles, said he organized a wave of bombings in
Mr. Posada proudly admitted authorship of the hotel bomb attacks last year. He described them as acts of war intended to cripple a totalitarian regime by depriving it of foreign tourism and investment….
For several months the attacks did indeed discourage tourism. With a rueful chuckle, Mr. Posada described the Italian tourist’s death as a freak accident, but he declared that he had a clear conscience, saying, “I sleep like a baby.”
(Exhibit 2).
This first article also reported that money had been delivered to Mr. Posada by several friends, some of whom held key positions in the Cuban American National Foundation that “was used for his living expenses and for operations” and that his late friend, Jorge Mas Canosa, CANF’s former chairman, told him “he did not want to know the details of his activities.” (Exhibit 2).
The
article noted that Mr. Posada identified Gaspar Jimenez, who was jailed in
The article further reported Mr. Posada’s belief that after the hotel bombings began, American authorities did not bother to question him due to his longstanding relationship with American law enforcement and intelligence agencies. (Exhibit 2). The first article also reported that Mr. Posada denied any role in the Cubana airline bombing. (Exhibit 2).
The Times published a second article the same day under the headline A Cuban Exile Details the 'Horrendous Matter' of a Bombing Campaign. This article was based primarily on an interview of Antonio Jorge Alvarez, a whistleblower in Posada’s office who was alarmed by the bombing campaign.. (Exhibit 3). The Times also published with this article a copy of the FAX that Mr. Posada had sent to Mr. Alvarez’s office signed “Solo.”
Mr.
Alvarez claimed that for nearly a year, he had watched with growing concern as
two of his Cuban partners acquired explosives and detonators, congratulating
each other whenever a bomb went off in
The
article reported that the FBI showed little interest in Mr. Alvarez’s information.
According to Mr. Alvarez at the time we interviewed him in 1998, the FBI had contacted him once by telephone, told him
that his life was in danger and that he should leave
The
article reported that Mr. Alvarez told us about possible links between the
plotters in
The
article contained Mr. Alvarez’s detailed account and description of how Mr.
Posada moved explosives to
The
two articles published on
The
following day, Monday, July 13, 1998, The Times published our third
article under the headline, Decades of Intrigue; Life in the Shadows, Trying
to Bring Down Castro. (Exhibit
4). This article provided a broader
perspective on Mr. Posada’s life and his involvement with
As Mr. Posada sees it, because he does not stage his
anti-Castro activities from within the
(Exhibit 4).
The Failed Prosecution
On
August 25, 1998, a United States grand jury in Puerto Rico indicted Jose
Rodriguez Sosa, Alfredo Otero, Angel Alfonso Aleman, Angel Hernandez Rojo, Juan
Bautista Marquez and Francisco Secundino Cordova were indicted on various
charges, including conspiring to assassinate Fidel Castro. See
Mr.
Rohter and I then prepared a further article for the Times which was
published on
Later,
the prosecutor decided that Mr. Alfonso’s confession -- that the rifles found
on La Esperanza were intended to assassinate Castro -- would not be used
as evidence because its legality was too vague.
(Exhibit 21). The defense, based
on the
Luis
Posada Arrested in
then Released & Returns to the
In
November 2000, Mr. Posada, along with three collaborators, was arrested in
On
or about
. In
the midst of the news of Mr. Posada’s return to the
The Government’s First Subpoena to Me
On May 6, 2005, the Immigration and Customs Enforcement Division of the U.S. Department of Homeland Security issued two subpoenas duces tecum commanding The New York Times and me to produce to it “Copies of all tape recordings and documents relating to the interview of Luis Posada Carriles by Ann Bardach, which was conducted in June 1998, excerpts of which were published in the New York Times on July 12 and 13, 1998.” (Exhibit 23).
I
regarded the subpoena as an attack on my independence as a journalist because I
had conducted the interview of Mr. Posada in my role as a professional
journalist. I had not promised Mr.
Posada confidentiality, but I believe that I was able to obtain the interview
because Mr. Posada did not view me as a tool of
Coincidentally, on May 10, 2005, The National Security Archive (NSA) compiled information that it had assembled regarding Mr. Posada in a single briefing book called, LUIS POSADA CARRILES THE DECLASSIFIED RECORD CIA and FBI Documents Detail Career in International Terrorism; Connection to U.S., National Security Archive Electronic Briefing Book No. 153. The National Security Archive, an independent non-governmental research library located at The George Washington University, collects and publishes declassified documents obtained through the Freedom of Information Act and is accessible online at: http://www.gwu.edu/~nsarchiv/. One can read hundreds of documents relating to Luis Posada at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB153/ index.htm.
On Monday, May 16, 2005, I filed a petition in the United States District Court for the Southern District of Florida asking the Court to quash the subpoena as it had been issued in violation of constitutional and common law protections of journalists, the Department’s own guidelines for subpoenaing journalists, and constitutional protections of privacy rights. (Exhibit 24). I pointed out in a declaration filed in support of that motion that “the Department already is in possession of abundant materials concerning the actions of Mr. Posada Carriles upon which it could dispose of the petition.”
The
following day,
The
Department of Homeland Security placed Mr. Posada in detention in a federal
facility in
Mr. Posada’s Limbo
On
On
After
a petition for political asylum is denied and an alien is found to be
excludable, the Attorney General is required to remove the alien from the
The
Supreme Court has held, however, that detention after a removal order may not
continue indefinitely and that an alien generally must be released if after six
months of post-removal order detention he or she can establish that his or her
removal is not reasonably foreseeable. See
Although the six-month period following entry of the Mr. Posada removal order would expire on March 25, 2006, the Department of Homeland Security determined in an interim decision on March 22, 2006, to maintain Mr. Posada in custody for the purposes of effectuating his removal to a third country that would be willing to accept him. (Exhibit 14 at 2).
On
Petitioner
is a 78-year-old native and citizen of
The Magistrate further noted that 8 U.S.C. §§ 1531-37 establish the Alien Terrorist Removal Court and that upon receipt of classified information that an alien is an alien terrorist, the Attorney General may seek removal of the alien by filing an application with the removal court and may take the alien into custody indefinitely, but that the Attorney General had not provided the certification required by this statutory mechanism. (Exhibit 14 at 20-21). Specifically, the Magistrate pointed out: “In this case, Petitioner was never certified by the Attorney General as a terrorist or danger to the community or national security.”
The Magistrate also observed that 8 C.F.R. §§ 241.13(e)(6) & 241.14 allow for continued detention if the Attorney General certifies that there are special circumstances that require continued detention, but again the Attorney General had not certified any such circumstances exist. (Exhibit 14 at 21-22). These procedures authorize continued detention of an alien for additional periods of up to six months of any alien whose removal is not reasonably foreseeable and who has engaged in terrorist activities or otherwise presents a threat to national security et al.
In
sum, the Magistrate concluded that the Government had any number of alternative
legal means for ensuring that Mr. Posada would continue to be held, but that it
had chosen not to employ any of those means.
This seemed to demonstrate that
the Government did not regard investigation or prosecution of Mr. Posada as a compelling
interest. Instead, it appears to
be the view of the current Administration that because Mr. Posada’s actions
historically have been directed against overthrowing Fidel Castro, an objective
which appears to be consistent with the interests of the
The Government’s hesitancy to express its true views regarding Mr. Posada manifested itself in the nominal objection that the Government filed to the Magistrate’s recommendation to release Mr. Posada. There, the Government stated that he had not yet decided whether to make the certifications allowed under the various statutes and regulations authorizing continued detention, but that it may do so in the future. (Exhibit 30).
The Government’s Renewed Interest in My Journalism
While Mr. Posada and the Government were arguing about whether he would be removed, detained, or released, my attorney Thomas R. Julin of Hunton & Williams LLP heard again from attorneys for the Government. On October 31, 2005, an assistant United States Attorney assigned to the Counterterrorism Division of the Justice Department contacted The Times’ attorney to let him know that the Justice Department might seek a grand jury subpoena to require me to turn over materials relating to my interview of Mr. Posada.
If the Government had been serious about criminally prosecuting Mr. Posada on the basis of the statements he made in June, 1998 and that had been reported on the front page of The New York Times and other national newspapers, it could have done so long ago.
More
Evidence
In June 2006, I received a copy
of a document written by Mr. Antonio
“Tonin” Llama, a former director of the Cuban American National Foundation, who
had been indicted and acquitted in the Esperanza
case in 1998. In it, Mr. Llama demanded
that the CANF “deliver the titles and assets that I bought and paid for the
campaign that we carried out when I was a director, with the purpose of
destabilizing Castro’s communist government that has been in power in
When
I became aware of Mr. Llama’s admissions, it seemed to me that the Government
then would be able to obtain extensive information from Mr. Llama regarding
whatever the Grand Jury might be investigating. Indeed Mr. Llama has since been
interviewed by the FBI in
The Government Destroys its Own File
I learned
from sources inside the FBI that in August 2003, the Miami FBI had closed its investigation of
Mr. Posada. The closure of his case allowed a green-lighted destruction of the evidence that
conscientious FBI agents had so meticulously
gathered against him for many years- including some of the original cables from
Ms. Orihuela, told me that the
supervisory agent in charge or SAC, Hector Pesquera, and the U.S. Attorney’s
Office of Marcos Jimenez would have had to
“sign off” on the file closure and destruction.
Ms. Orihuela added that the file has been reopened in May 2005 after
Posada had reentered the country “and is now a pending case.” However, I learned from staff in the Miami
FBI office that five boxes of some of the most crucial data regarding Posada
and the
Moreover, the Posada file closure and subsequent destruction struck me as compelling evidence that the Government had no real interest in prosecuting Posada and that at that time (2003), it may have taken intentional steps to make sure that Posada could not be prosecuted.
At
the time that the file closure took place in August, 2003, Mr. Posada was being held in jail in
Preserving case files and evidence against
Posada and his comrades has proven challenging in several countries. As far
back as 1988, President Carlos Andrés Pérez asserted that "the [Cubana bombing] file had been tampered
with.” His successor, Hugo Chavez,
likewise complained that in the days before he assumed the presidency in 1998, many sensitive DISIP
files were destroyed, including Cubana case
records, according to Jose Pertierra, who has represented
In 1992, a fire at the police station in
There were other thorny details in this case. To give you a sense of how challenging the
environment in
Working alongside Crespo Jr. is detective
Hector Alfonso, whose father is also a legendary anti-Castro militant, Hector Fabian, who also hosts a radio show.
Assigned to the MDPD intelligence unit, Alfonso
has access to the most sensitive information on homeland defense,
including all materials on Cuban exile militants. "Say you had a tip for
the FBI about a bombing," mused one
former agent who worked on Posada’s case. "Would you want to give it to a
guy whose father is Luis Crespo?"
The Atlantic
Monthly Article
On
Shortly
after publication of my Atlantic Monthly article, the NSA released still
more documents that it had obtained from Government files including new
investigative records which the NSA stated “further implicate Luis Posada
Carriles” in the downing of the Cubana airliner
(http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB202/index.htm). Among the documents
posted is an “annotated list of four volumes of still-secret records on Mr.
Posada’s career with the CIA, his acts of violence, and his suspected
involvement in the bombing of Cubana flight 455 on
The Grand Jury Subpoenas Me
On
The
United States Government has compiled extensive information concerning
Luis Posada Carriles and his activities since he openly
opposed Fidel Castro shortly after the Cuban Revolution in 1959, left
My knowledge of the Government’s extensive files is based in part on The New York Times’ review of declassified CIA and FBI documents, a good deal of it compiled by the National Security Archive. The NSA has publicly stated that the Government has hundreds of other documents relating to Mr. Posada and the Cubana airliner downing which it refuses to release to the public.
The declassified FBI and CIA documents show that the Government has extensive alternative sources of information concerning Mr. Posada’s involvement in actions that the Newark Grand Jury – convened in 2005 - appears to be now investigating.
If
the Government were seriously interested in prosecuting Mr. Posada or others
associated with him for criminal activities for attacks against
In early May, 2007, US District Judge
Kathleen Cardone dismissed the sole
charge brought by the
Posada’s lawyers had made
much of a woeful interpreter who had conducted an extended interview with
Posada about his career as a militant. Citing several errors in translation,
they won the judge’s ire, who also was irked that prosecutors were shopping for
information against Posada in the wrong legal venue. However, no one pointed
out the that Luis Posada did not need a translator – having learned English
as a young man and who later served as a translator during Iran-Contra for US servicemen. I had
interviewed him mostly in English, as did Blake Fleetwood for New
Times in 1976, and at no time did Posada indicate to either of us that he
did not understand something. In fact, his attorney, Matthew Archambleault, who
handled his arraignment, spoke to him in English.
With all immigration charged dropped against him, Luis Posada walked out of jail on May 8th a free man - albeit one branded by the U.S. Justice Department as "a dangerous criminal and an admitted mastermind of terrorist plots." Pressure mounted as to why former U.S. Atty. Gen. Alberto R. Gonzales refused to declare Posada a security threat and arrest him under The Patriot Act, legislation he crafted and so ardently supported. Former Attorney General Gonzalez and the Bush Administration have consistently refused to do so.
Soon after his release, Posada was
seen celebrating at El Club Big Five, an exclusive private club popular with many of
It was not until Nov. 6, 2007, that DOJ prosecutors announced that they would appeal Judge Kathleen Cardone’s ruling dismissing charges against Posada regarding his immigration status.
Call me a strict constructionist, but somehow I do not believe that our founding fathers intended that our government be allowed to raid the news media for their work files after it bungles a case and destroys crucial evidence. And that is exactly what happened in the case of Luis Posada Carriles
_________________________________________________
53935.000005
Ann Louise Bardach