VHeadline.com guest commentarist Arthur Shaw writes: The Luis Posada Carriles case is fairly complex. It seems to have two separate but interrelated sides, an immigration side and an extradition side. I do not disregard or belittle the additional political side of the case. But it this rap, I don’t want to stray for a technical discussion of the case.
THE IMMIGRATION SIDE
The June 13 hearing in El Paso, Texas before US Immigration Judge William L.. Abbott, on the charge on illegal entry into the United States, seems to aired out a few questions in Posada’s case:
(1) will Posada be released on bond, hearing set June 24;
(2) did Posada abandon his US permanent resident status when he became a Venezuelan citizen, hearing set for Aug 29;
(3) will court grant a change of venue to Miami, no hearing date set so far;
(4) will the court give political asylum to Posada, now that his lawyer has refiled for asylum, no date set for a hearing.
The whole immigration side of the case is possibly a stalling tactic and a trick by the imperialist Bush regime to calm the international outcry over the case while effectively doing nothing. But this is no reason not to pay attention to the immigration side because there is a real potential for dramatic developments on this side on the case.
WILL POSADA BE RELEASED ON IMMIGRATION BOND?
Under the rule of law, a judge in ruling on a request by the accused for bail will usually look at nature of the crime, any previous criminal record of the accused and the likelihood of his fleeing.
In Posada’s case, there’s a certainty of fleeing because Posada, a 15-year fugitive, has been in flight from justice since 1985 when dressed as priest he escaped from Venezuelan custody. Posada’s presence in the United States itself establishes that he fleeing. It shouldn’t take a rocket scientist to decide that a guy who is already fleeing from justice has a high likelihood of fleeing. Even under the vanishing rule of law in the so-called but highly-touted “US democracy,” this call shouldn’t require a lot of judgment. Indeed, on the very day that US immigration officials finally “discovered” Posada’s internationally publicized presence in the United States, Posada lawyer Eduardo Soto told the Miami Herald that Posada had decided to withdraw his application for the political asylum and sneak out of the United States … just like he sneaked in.
Clearly Posada is not entitled to bail. He should be kept in his cell and watched closely until an ultimate decision is made on his case.
- Even an electronic monitoring device, like the cute little ankle bracelets, isn’t reliable with Posada because he is a highly trained former CIA spy, well versed and highly experienced in escape tactics.
Again, Judge Abbott will take evidence and hear arguments on the bond question of June 24, the anniversary of the Battle of Carabobo in Venezuela. Perhaps, the Battle is a good omen.
Whether Posada wins or loses on the bond question will not dispose of the other issues in his case.
DID POSADA ABANDON HIS US PERMANENT RESIDENCY WHEN HE BECAME A VENEZUELAN CITIZEN?
Judge Abbott may also consider whether Posada abandoned his permanent resident status when he engaged in terrorist and other criminal activity.
The website of the US Citizenship and Immigration Services (this used to be called the “INS”) tells its visitors “You may lose your permanent residence status (or, in other words, your “green card”) if you commit an act that makes you removable from the United States under the law in section 237 of the Immigration and Nationality Act. If you commit such an act, you may be brought before the immigration courts to determine your right to remain a Permanent Resident.” Section 237 of the Immigration and Nationality Act warns “green card” holders that they better not commit crimes or engage in terrorist activity.
- Posada, of course, has practically done every single thing that Section 237 prohibits. So, if the rule of law still exist in the United States, Posada lost his “green card” a long time ago.
However, according to reports mostly in the capitalist media, the court hearing, set for Aug 29, will likely narrow in on the effect of the acquisition of Venezuelan citizenship on a preexisting permanent resident status or “green card” in the United States. In other words, did his Venezuelan citizenship … independent of his criminality and terrorism … cancel Posada’s “green card?”
On this question, US Citizenship and Immigration Services website tells us that “You may be found to have abandoned your permanent resident status if you:
(1) Move to another country intending to live there permanently.
(2) Remain outside of the US for more than one year without obtaining a reentry permit or returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
(3) Remain outside of the US for more than two years after issuance of a reentry permit without obtaining a returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
(4) Fail to file income tax returns while living outside of the US for any period.
(5) Declare yourself a nonimmigrant on your tax returns.
In the late ’60s, Posada moved from the United States where he was only a “green card” to Venezuela where he became a citizen. It an incontrovertible fact that Posada in the late ’60s “moved to another country,” specifically Venezuela. So, the only thing that Posada’s lawyer can argue is Posada didn’t move to Venezuela “with the intent to live there permanently.”
Where people that respect the rule of law, they know that becoming a citizen of another country is the strongest possible evidence of an intent to live in the country permanently. But in the United States, the rule of law is only observed when it convenient to the Bush regime. So, a US court may shamelessly find that becoming a citizen of another country does not evidence an intent to live there permanently.
Posada did nine years, from 1976 to 1985, in a Venezuelan jail for blowing up the Cuban passenger jet in 1976. So, it is highly likely he “remained outside of the US for more than one year without obtaining a reentry permit or a returning resident visa,” as US “green card” law requires. Posada’s lawyer will likely argue that Posada failed to come back to the United States for over one year because his prison warden refused to let Posada out of his cell so that he could take care of the necessary paper work.
Under the undemocratic and antidemocratic Bush regime, the rule of law in the United States has evidently decayed to the point that if an individual’s mind is inflamed with hatred of Fidel Castro, then the deplorable condition of the individual’s mind is an absolute legal defense against any crime … however horrendous … that he may commit.
- If Posada wins on the permanent residence question, then his victory will dispose of all the other issues in the case. He will reside permanently in the United States and brag about how many people he murdered.
WILL THE COURT GRANT A CHANGE OF VENUE TO MIAMI?
If Judge Abbott moves the case to Miami, Posada has won and all other issues are moot.
South Florida is perhaps the most corrupt place in the US judicial and electoral system. It’s so corrupt that President Bill Clinton and US Attorney General Janet Reno barely got out of there with a victory in the Elian Gonzales case a few years ago. Unlike the rest of the United States, in South Florida, there isn’t even a semblance of the rule of law. Elsewhere in the US, the facade is preserved.
There may still be one or two judges in the South Florida district that have somehow retained judicial integrity, like US District Judge Michael Moore, but the rest of the judicial pack are despicable quislings for the aggressive and ferocious Miami Mafia.
Dante’s inscription above the gate of Hell also applies to South Florida.
Judge Abbott in El Paso didn’t fix a date for hearing on this motion for change of venue. This is surprising because venue requests are usually decided early in most judicial proceedings. By remaining silent, Judge Abbott can rule on venue at any time, perhaps as early as tomorrow.
But it would to queer or even bizarre if Judge Abbott throws away the biggest case of his career to the Miami nuthouse. But he may fear that this case is over his head.
The ground for keeping the case in El Paso is compelling. The federal government has charged Posada with illegally entering the United States. Where did he enter the United States? Posada told the Miami Herald that he entered from Mexico into Texas, not Miami. The fact that Posada is probably lying again isn’t so germane. Posada more likely entered the United States illegally by South Florida on the boat called the Santrina, belonging to Santiago Alvarez, Posada’s cash cow. If this were proven, the cash cow could be charge with felony of smuggling illegals into the United States .
The grounds used by Posada’s attorney to move the case to Miami are frivolous. Attorney Soto says the case should moved because he is inconvenienced by the need to travel to Texas from South Florida and Posada’s family in Miami misses Posada and he them. The place where the offense allegedly occurred is usually a more important factor in deciding venue questions than the whining of the accused attorney or the sobbing of the accused relatives.
WILL THE COURT GIVE POLITICAL ASYLUM TO POSADA?
If the case is moved to Miami, asylum will be only the first thing Posada will get.
Under the purported rule of law in the United States, terrorists don’t get asylum. Overwhelming evidence, including documents declassified and released by the US government, show the Posada is a terrorist. So, under the rule of law … if such a thing existed in the United States … Posada is not supposed to get asylum.
Posada argues that his terrorism was for rather than against the United States. So, he says, he shouldn’t be treated like other terrorists.
- Nothing will better demonstrate how rotten US democracy and the rule of law in the United States have become under the Bush regime than a grant of asylum to Posada.
Perhaps there is one thing that is more demonstrative of this rottenness in US democracy, it is the railroading and the savage sentencing of the heroic CUBAN FIVE who came to the United States to stop terrorism of the Miami Mafia against Cuba and against the United States. Yet, the United States condemns the CUBAN FIVE and protects Posada.
Most of the news coverage in the capitalist media emphasize the shocking and transparent hypocrisy of harboring … or, more correctly, coddling … a terrorist while pretending the lead a war on terrorism, butt the attack of the rule of law, an elemental institution in all democracies, is more grave and tragic.
THE EXTRADITION SIDE
The Venezuelan embassy in Washington submitted on Friday, June 10 a 700-page package of documents to “compliment” it earlier request for the preventive detention of Posada … to the US State Department. On Wednesday, June 15, the Venezuelan embassy submitted its formal request for the extradition of Posada.
After making at least 100 copies of both submissions, the YS State Department forwards about 10 copies of the submissions to the Office of International Affairs (“OIA”) within the US Department of Justice.
The OIA guys are extradition specialists. And Justice Department lawyers will likely fight for Posada. They have so far.
The requests for extradition are of two types: either formal requests for extradition supported by all documents required under the applicable treaty or requests for provisional arrest. Venezuela has now made both types of requests. But the imperialists in Washington have already turned down the request for provisional arrest at the same time the US immigration cops took Posada into custody.
When Posada was arrested, a spokesperson for the US Department of Homeland Security announced that “WE” don’t usually extradite people to places like Cuba and Venezuela.
This slip of the lip suggests a deal has already been made concerning the Posada case because the State and Justice departments have jurisdiction over extradition requests, not “WE,” which includes bigmouths in the Homeland Security Department.
Even if a deal has been made, this is no reason not to pay attention to the extradition side of the case.
When OIA (again, the US Justice Department’s Office of International Affairs) receives a extradition request from a foreign country, the following, according to the OIA manual, is supposed to occur:
(1) OIA reviews both types of requests for sufficiency and forwards appropriate ones to the district. — No problem there!
(2) The Assistant United States Attorney assigned to the case obtains a warrant and the fugitive is arrested and brought before the magistrate judge or the district judge.
As far as we know, Posada has not been brought before a magistrate (or a little judge) or district judge (a big boss judge). Posada has only been brought before a immigration judge — Abbott in El Paso — who is smaller, in power, than even a magistrate.”
(3) The government opposes bond in extradition cases.”
This is very interesting because it seems to relate to the immigration side of the case where Posada is indeed seeking his release from the jail in El Paso on an immigration bond. Let’s see how judge Abbott, the immigration judge, rules on Posada’s request for bail.”
(4) A hearing under 18 U.S.C. §3184 is scheduled to determine whether the fugitive is extraditable. If the court finds the fugitive to be extraditable, it enters an order of extraditability and certifies the record to the Secretary of State, who decides whether to surrender the fugitive to the requesting government. In some cases a fugitive may waive the hearing process.”
This Section 3184 hearing looks the big chicken. It looks like the gala event. But it really isn’t … mainly because US prosecutor represents the foreign country (Venezuela in our case) that originated the request for extradition.
The Office of International Affairs works closely with prosecutors assigned in extradition cases. In other words, the OIA tells the US prosecutors, representing the foreign country, what to do and say.
So, Posada and his legal team will be representing Posada. And the Assistant US Attorney assigned to the case, technically representing Venezuela– but under the fraudulent rule of law in the US … will also bee representing Posada.
Posada “vs.” Posada. A stacked deck, to say the least. If Posada loses when he controls both the prosecution and the defense, he needs another lawyer.
Venezuela, arguing conflict of interest on the part of the US prosecutors, should ask the court for leave to retain its own lawyers for the Section 3184 hearing and not rely on the rotten GOP prosecutors. The court has the power to grant the request, but it doesn’t have to grant it.
Note that the Section 3184 court only makes a “decision” if it determines that Posada is not “extraditable.” If the court, on the other hand, determines that Posada is “extraditable,” then Condoleezza Rice or her boss decides whether to ship Posada to Caracas.
There is absolutely no possibility that Posada will waive the hearing process.
(5) OIA notifies the foreign government and arranges for the transfer of the fugitive to the agents appointed by the requesting country (Venezuela) to receive him or her. Although the order following the extradition hearing is not appealable (by either the fugitive or the government), the fugitive may petition for a writ of habeas corpus as soon as the order is issued.
So, even Posada loses at the Section 3184 hearing, he still has another shot with a writ of habeas corpus where the 3184 gala will be repeated.
WHAT KIND OF SHOW WILL THE OIA AND POSADA — NOMINAL ADVERSARIES — PUT ON AT THE 3184 HEARING?
Posada argues that he doesn’t want to be extradited to Venezuela because he fears that the Venezuelans will torture him. Well, Posada did nine years, in the ’70s and ’80s, in a Venezuelan prison before he escaped and not once during his subsequent 20 years as a fugitive from Venezuelan justice did Posada complained about being tortured in Venezuela.
That is, before he sneaked, in 2005, into the United States and Venezuela ask for his extradition. Indeed, Posada has boasted that while did time in Venezuela, he had in his cell his own record player, TV, and radio. And, he says, he had similar amenities in his cell later in Panama.
Most Venezuelan workers … even today … don’t have all of those comforts.
That’s not all he had in his cell in Venezuela. He had painting supplies. Yes, painting supplies. He spent his time painting … horrible, ugly landscapes for which he SHOULD have been tortured. Now, suddenly, opportunistically, and lyingly he complains about a fear of being tortured if he’s extradited to Venezuela.
OIA will likely use as a guidepost the “grounds for denying extradition” set out in Article 4 of the Inter American Convention on Extradition, although the United States has refused to sign or ratify the OAS convention on extradition.
Article 4 says “Extradition shall not be granted.
1. When the person sought has completed his punishment or has been granted amnesty, pardon or grace for the offense for which extradition is sought, or when he has been acquitted or the case against him for the same offense has been dismissed with prejudice.”
- It’s highly unlikely that Posada will be saved by “grace.”
A former Panamanian president in 2004 “pardoned” Posada after the Miami Mafia paid her a $4 million bribe. But the “pardon” … if it has any force at all … applies only to the crimes Posada committed in Panama, namely, the attempted massacre of 3000 Panamanian students and Fidel Castro with 33 pounds of C4 plastic explosives. Capitalist media generally ignores the thousands of Panamanian students who would have perished had Posada, in 2000, detonated his C4 in the auditorium of at the University of Panama, mentioning only that Fidel Castro would have certainly been killed. So, the “pardon” from the corrupt, former Panamanian president… if it applies to anything … does not apply to the 1976 blowing up by Posada of the Cuban passenger jet nor does it apply to his 1997 hotel bombings in Cuba because both bombings happened outside of Panama.
“Extradition shall not be granted … when he (Posada) has been acquitted…” This is Posada’s “ace” up his sleeve.
Here’s how a June 10 press release from the Venezuelan embassy in Washington, D.C. deals with is sensitive and perhaps governing point “The history of the litigation in Venezuela that shows that after litigation in the military tribunals, the case was annulled on March 24, 1983, because it was conducted in the wrong forum. Subsequently, it was sent to the penal courts where, prior to a verdict by the court, Posada escaped from prison in San Juan de los Morros in Guarico state on August 18, 1985.”
- So, in other words, the first didn’t have jurisdiction and the second court didn’t have a chance to complete its work because Posada broke out of jail.
The alleged and celebrated “two acquittals,” (like the lie that in Panama, Posada only tried to kill Castro) is another example of the skill of lying capitalist press. I will admit that I fell for this “two acquittals” lie which is interminably repeated in the capitalist media.
Of course, the case against Posada was never dismissed with prejudice… or even without prejudice.
2. When the prosecution or punishment is barred by the statute of limitations according to the laws of the requesting State (Venezuela) or the requested State (USA) prior to the presentation of the request for extradition.”
- A statute of limitation is a rule that says prosecute this guy before a certain period of time expires or forget about it.
The 1922 US-Venezuelan treaty has a 15-year statute of limitation.
The Venezuelan June 10 press release from the Venezuelan embassy in the US says …correctly … that time under statute doesn’t even run when the accused is a fugitive from justice outside of the jurisdiction of the Venezuelan state.
This one is definitely not an ace, but the OIA will try to milk it for whatever value it has.
3. When the person sought has been tried or sentenced or is to be tried before an extraordinary or ad hoc tribunal of the requesting State.
The two courts before which Posada appeared in Venezuela were ordinary and long standing institutions in the judicial system, not cooked up bodies like the “court” in Franz Kafka’s “The Trial.”
This is not a ace for the OIA and Posada.
4. When, as determined by the requested State (USA), the offense for which the person is sought is a political offense, an offense related thereto, or an ordinary criminal offense prosecuted for political reasons. The requested State may decide that the fact that the victim of the punishable act in question performed political functions does not in itself justify the designation of the offense as political.
This is the argument … a loyal soldier for US imperialism … that Posada’s attorney keeps making in the press. Posada himself made it in his celebrated 1998 interview with the New York Times. But the contention that blowing up 73 people who happened to be passengers and crew of a airliner advances his political agenda and makes him not “extraditable” is transparent nonsense that only a member of the Miami Mafia will entertain.
This isn’t an ace, it’s a joker.
5. When, from the circumstances of the case, it can be inferred that persecution for reasons of race, religion or nationality is involved, or that the position of the person sought may be prejudiced for any of these reasons.
This one may have some force if Posada really was a priest, but he isn’t. Posada only dresses up like a priest and totes a bible when he wants to break out of jail. At other times, Posada dresses like a debonair businessman. The El Paso Times has reported that Posada, during his stay there, visits the chapel every Wednesday. But the only person who is persecuted by these visits … every Wednesday … is God.
I don’t believe even the OIA will bring up this one at the hearing. But Posada might.
6. With respect to offenses that in the requested State (USA) cannot be prosecuted unless a complaint or charge has been made by a party having a legitimate interest.
This one is more useless for the OIA and Posada than the one about religious persecution.
CONCLUSIONS ABOUT BOTH SIDES OF THE CASE
In June, Posada is kind of sittin’ pretty because the dealer (the imperialist Bush regime) is cheating for him.
But the last thing the dealer wants is for the WHOLE WORLD to see that the dealer is a low-down, lying, cheating fraud.
But the case must not lose the attention of the whole world. If the case loses the attention of the whole world, the Bush regime will “go to town.”