ARTURO V. HERNANDEZ

ATTORNEY AT LAW

DATE OF TESTIMONY: THURSDAY, NOVEMBER 15, 2007

OPENING STATEMENT OF ARTURO V. HERNANDEZ BEFORE THE SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS AND OVERSIGHT

Members of the subcommittee, my name is Arturo V. Hernandez, thank you for this invitation and opportunity to address you on the important issues that comprise the focus of this hearing. I appear before you today in order to present a needed counter balance to the rhetoric and misinformation that has emanated from Cuba and Venezuela and their acolytes in our country on the subject of my client, Luis Posada Carriles. As you may be aware, I am an attorney who specializes in federal criminal defense. It was in that capacity that I came to be involved as lead counsel in the defense of Luis Posada Carriles. He was charged by indictment in El Paso, Texas, in a seven count indictment alleging, in sum and substance, that he had made false statements during the course of his application for naturalization. After five months of litigation, and on the eve of trial, United States District Court Judge, the Honorable Kathleen Cardone, dismissed all charges against him.

In dismissing all charges against him the Court stated: “….this Court will not set aside such rights, nor overlook Government misconduct because Defendant is a political hot potato. This Court’s concern is not politics; it is the preservation of criminal justice.”

As a result of the Judge’s ruling, Mr. Posada Carriles was conditionally released back to his community in Miami, Florida. This entire matter is now under appeal by the Government and is before the Fifth Circuit Court of Appeals. Today Mr. Posada lives quietly in Miami, Florida, awaiting the conclusion of the appellate process, where he is joined by his wife, his children and grand children, all of whom are United States Citizens for many years.

Members of the subcommittee, Mr. Posada Carriles is now almost 80 years old. His is the story of a man’s singular mission to combat Castro’s violent revolutionary communism in all its manifestations and permutations wherever it has reared its ugly head and at whatever personal cost to him. His individual struggle against communism was in a very real sense the often unobserved struggle of our hemisphere to avoid the sovietization of Latin America as part of the great ideological and strategic contest between the United States and the Soviet Union known as the “Cold War”. Mr. Posada Carriles, who served as a second lieutenant in the US Army and volunteered to fight in Vietnam, was a valiant soldier in the Cold War on behalf of the interests of the United States and Venezuela during the decades of the 1960’s through the 1980’s, and , it is no exaggeration to suggest that more than a few South American and Central American countries owe their democracies to the sacrifices incurred by men and women such as Mr. Posada Carriles.

It is a point of historical irony that a terrorist nation such as Cuba that systematically trained and armed entire armies of terrorist over four decades resulting in the deaths of hundreds of thousands of innocent civilians, should now be heard on the international stage accusing Mr. Posada Carriles of being a terrorist and the United States of hypocrisy in the war on terror.

These voices over and over again repeat the accusation that Mr. Posada Carriles was involved in the downing of the Cubana Airliner flight 455 over the ocean near Barbados in 1976. The true facts of this tragedy, however, refute their contention. No American jury would convict Mr. Posada Carriles on these facts. The forensic evidence alone proves that he is innocent. The metal chards found imbedded in the bodies of the victims, showed that the explosion came from the cargo hold, a secure area of the aircraft that Mr. Posada Carriles would not have had access to, and not from the bathroom area as the prosecution contended during the trial.

Forensic examinations conducted by British Government laboratory “Lararde”, and a forensic expert named Eric Newton, failed to confirm the chemical signature of the explosives the prosecution contended had come from the bathroom.

Those are just some of the multiple reasons why a Venezuelan military tribunal after a full trial and over three years of investigation, acquitted Mr. Posada Carriles of all charges. It is further the reason why, after a seemingly endless round of reviews, the Venezuelan civilian prosecutors recommended that the verdict of acquittal be affirmed. Despite this recommendation, Mr. Posada Carriles was not released from custody and served nine years of prison waiting for the Court’s reviews to conclude. When it became apparent to him that the legal process was being subverted by the influence of pro Castro elements within the government of Venezuela, he decided to escape from prison.

In the final analysis, the historical record is clear that Cuba has stood for years as a poisonous dagger aimed at the side of the United States. Mr. Posada Carriles, as an ally of the United States, does not deny that he confronted Cuban rebel insurgencies in Venezuela and in other countries in defense of their democracies. It would be unfair, years after the collapse of the Soviet Union, to look back now and sort piecemeal through the events of those decades, the decades of the cold war, and isolate persons and events without respect to the times in which they occurred.

There is always the danger that in a time of war against terrorism that the moniker of “terrorist” can become so flexible that it loses all meaning. Mr. Posada Carriles is not and has never been a terrorist. His life long ambition has been to bring democracy and freedom to his place of birth, Cuba. He has been throughout his life a staunch ally of the United States. To many in the Cuban American community he is a hero. He is now simply an old man, who tried to do his duty, as he best saw that duty, and to live out the remaining days of his life in peace.

What may not reasonably be denied is that Cuba and Venezuela are purposely manipulating the case of Mr. Posada Carriles, as an instrument of their foreign policy that seeks to undermine the legitimate goal of the eradication of terrorism. Their desire is not to seek justice against an accused terrorist, but rather to satisfy a base need to retaliate against a hated enemy. Cuba’s government, and increasingly the government of Venezuela, answer to no law, domestic or international, or any convention or treaty. They respond only to the will of its dictators. There is no doubt, members of the subcommittee, that neither Cuba or Venezuela would hesitate to torture and kill Mr. Posada Carriles if he were ever to fall into their hands. That is why after a full evidentiary hearing before a United States Immigration Judge, the Court determined that Mr. Posada Carriles was a removable alien, but ruled that he could not be removed to either Venezuela or Cuba because of the likelihood that this 80 year old man would be subjected to torture and certain death.

CONCLUSION

The great scientist Galileo once observed that to accuse a man of heresy is simple, all you need is a tongue. There have been no shortage of tongues in the case of Luis Posada Carriles. But what there has not been is credible evidence of wrongdoing. Most of the allegations found in the declassified materials are over three to four decades old and are based on dubious double hearsay from unidentified sources. The truth of the matter is that Mr. Posada Carriles does not present a threat to anyone but he especially does not represent a threat to the United States – a country that he loves and has sought to protect throughout his entire life.

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