Prepared Statement of Ann Louise Bardach

Author, Journalist

November 15, 2007

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

and http://www.theatlantic.com/doc/200610u/posada-notes?ca=IQI74xpBzb1dzIWJ5fPwG65VGq6LhH1gAgqzG2Bzjzc%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 United States at Miami from Cuba on April 28, 1961, and was selected to be part of a Cuba infiltration team of the Black Falcons, an anti-Castro commando group. (Exhibit 5 at 3). “Posada said he was planning to place limpet mines on either a Cuban or Soviet vessel in the harbor of Veracruz, Mexico and had 100 pounds of C-4 explosives and detonators.” (Exhibit 5 at 3).

In March 1963, Mr. Posada enrolled in U.S. Army officer candidate school at Fort Benning and received instruction in demolition, propaganda and intelligence. He left the Army, however, about one year later after it became clear that the United States had no intention of invading Cuba. (Exhibit 6).

After leaving the Army, Mr. Posada joined Junta Revolucionaria Cubana, an anti-Castro organization, and built a military training camp in Polk City, Florida for guerillas who were planning to invade Cuba. (Exhibit 5 at 4).

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).

In the late 1970s, Mr. Posada told investigators from the House assassinations panel that he had been trained as a CIA operative in the Florida Keys and had quickly become a “principal agent” who “worked with the company direct” and had had arms, boats, and a network of safe houses. (Exhibit 9).

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 October 6, 1976, crash of a Cubana airliner off the coast of Barbados with 73 people aboard, including teenagers from Cuba’s national fencing team. An October 7, 1976 CIA memo states “This Agency has conducted an investigation of the names of persons suspected of involvement in the 5 October 1976 crash of the Cubana airlines flight…We have determined that this Agency had a relationship with one person whose name has been mentioned in connection with the reported bombing. Both [Freddy] Lugo’s and [Hernan Ricardo] Lozano’s employer in Caracas is Luis Posada Carriles.” (Exhibit 12).

A November 8, 1976, declassified FBI memo notes that “Some plans regarding the bombing of a Cubana Airlines airplane were discussed at the bar in the Anauco Hilton Hotel in Caracas, Venezuela, at which meeting Frank Castro, Gustavo Castillo, Luis Posada Carriles and [Ricardo “Mono”] Morales Navarrete were present. This meeting took place sometime before the bombing of the Cubana DC-8 near Barbados on October 6, 1976.” (Exhibit 13 at 2-3).

. 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 Venezuela, Mr. Posada went to El Salvador and re-established ties with the CIA. He became involved there in supplying arms to the U.S.-backed Contras fighting the Sandinistas in Nicaragua. (Exhibit 14) (R&R at 4).

In September, 1989, Mr. Posada moved to Guatemala. In February, 1990, he was shot numerous times in the face and torso during an assassination attempt. (Exhibit 14) (R&R at 4).

On February 3, 1992, FBI special agents Michael S. Foster and George R. Kiszynski conducted a detailed, tape-recorded interview of Mr. Posada in Tegucigalpa, Honduras concerning Mr. Posada’s involvement in the Iran-Contra Affair. (Exhibit 15) .

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 Cuba from April 11, 1997 through September 4, 1997. One of the bombings on September 1, 1997, killed Fabio Di Celmo, an Italian tourist. Early on, Mr. Posada was accused by the Cuban government - and suspected and investigated by US authorities of masterminding the bombings. (Exhibit 14) (R&R at 5).

The bombings attracted extensive national media attention. For example, the Los Angeles Times published an article on July 15, 1997, headlined, U.S. Denies Role in Havana Hotel Blasts, and an article on September 11, 1997, headlined Salvadoran Held in 4 Recent Explosions. On September 7, 1997, The Washington Post published an editorial entitled Murder in Havana. The Miami Herald published the results of its investigation of the Havana bombings on November 11, 1997, in article headlined, Exiles Directed Blasts That Rocked Island's Tourism, Investigation Reveals. The Herald article quoted three Miami exiles as identifying Mr. Posada as obtaining $15,000 from wealthy Cuban-American businessmen in Miami to pay the Salvadorans to commit the bombings and as commanding the operation. (Exhibit 16).

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 May 5, 1998. (Exhibit 17). The 2200-word article described how in October, 1997, U.S. Coast Guard officials boarded a cabin cruiser called La Esperanza near Puerto Rico and found four Cuban exiles who claimed to be on a fishing trip, but who had no fishing gear. Instead, the Coast Guard found two .50-caliber Barrett high-powered sniper rifles, registered to the president of the Cuban American National Foundation (CANF), and that the cabin cruiser was registered to a company owned by Jose Antonio Llama, a member of the CANF executive board. (Exhibit 17). One of the exiles on La Esperanza, Angel Alfonso Aleman, reportedly blurted out during the search that the rifles were “for the purpose of assassinating Fidel Castro.” (Exhibit 17). The article also reported how the incident touched off an investigation of CANF, which had raised more than $1 million for Republicans and Democrats and forged close ties to every Administration from Ronald Reagan onwards. That is, until the current Administration of George W. Bush, for whom they were judged to be insufficiently hardline enough in regard to Cuba.

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 Miami when it declined to condemn a string of bombings of hotels and restaurants in Cuba” and took out a full page ad in The Miami Herald announcing that it would continue using every means at its disposal against Cuba, without excluding violence. (Exhibit 17).

In our New York Times article was an interview with Angel Alfonso Aleman of Union City, N.J. in which he said “I am a Cuban patriot.” He also said that he had visited the White House on four occasions, “once with Reagan, once with Bush, and twice with Clinton,” and that he produced a photograph of himself alone with Mr. Clinton. (Exhibit 17). We reported that the case was under investigation by the United States Attorney, Customs, the Coast Guard, the Bureau of Alcohol, Tobacco and Firearms, the Maritime Enforcement Agency, the CIA, the FBI and the State Department. (Exhibit 17).

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 Caracas with ties to Mr. Posada. In the first week of June, 1998, I met with the businessman in New York City and asked him to arrange an interview with Mr. Posada.

Around the same time The Miami Herald published an article on Sunday, June 7, 1998, entitled An Exile's Relentless Aim: Oust Castro. (Exhibit 18). The Herald was unable to interview Mr. Posada, but it identified two of his co-conspirators in Guatemala as Jose Alvarez and Jose Burgos, officers of three Guatemala City subsidiaries of WRB Enterprises, a Tampa firm whose Guatemala operations were headed up by Antonio Alvarez, a Cuban exile from Greenville, S.C.

A FBI agent who worked on the Havana bombing case told me that the FBI had sent agents to Guatemala to interview Antonio Alvarez. Mr. Alvarez related precisely how Mr. Posada’s operation worked and identified its intended targets. “We found him entirely credible,” said one FBI agent, who worked extensively on the case. “We thought it would be a slam dunk: we’d charge and arrest Posada.” “But then,” the agent said, “we had a meeting one day and the chief said, ‘Hey, wait a minute. Lots of folks around here think Posada is a freedom fighter.’ We were in shock. And they closed down the whole Posada investigation. When we asked for a wiretap on [famed militant] Orlando Bosch, who we knew was working on bombing runs, we were turned down.”

Two weeks after my New York meeting with the Cuban-exile businessman, I received a message on my phone machine from “Ramon Medina. He left a number and asked that I call him back. I knew that Ramon Medina was a nom de guerre of Luis Posada Carriles. As I was working on The Times’ investigative series on exile militant groups, I phoned my editor, Steve Engleberg, and played Mr. Posada’s message. He instructed me to call Mr. Posada back and to arrange to meet with him wherever he might be.

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 Caracas, Venezuela and Isla Margarita where a Venezuelan official gave me a copy of a FAX from Mr. Posada sent to his partners, Jose Alvarez and Jose Burgos, in Guatemala City in August, 1997. In the FAX, Mr. Posada indicated Alvarez and Burgos would receive “via Western Union four transfers of $800 each . . . from New Jersey.” The FAX also stated: “If there is no publicity, the work is not useful. The U.S. newspapers don’t publish anything unless it’s confirmed,” reflecting Mr. Posada’s concern that the Cuban government was hushing up many of the summer bombings to avoid creating panic in its tourism industry. The FAX was signed “Solo,” one of Mr. Posada’s code names and it was clear to us that Posada’s “Solo FAX” concerned the Havana hotel bombings. While I was in Caracas, my reporting partner, Larry Rohter, flew to Guatemala City to investigate Mr. Posada’s operation there.

Mr. Rohter and I then flew to Aruba to meet Mr. Posada on June 18, 1998. Mr. Posada picked me up at the airport wearing Bermuda shorts and sandals. Mr. Rohter stayed long enough to observe Mr. Posada’s entrance and greeting of me, then left by taxi to a hotel where he continued working on the story. Mr. Posada carried my bags outside to a waiting van, and off we went to his gated safe house, the home of a supporter, hidden from view by a high stucco gated wall. He explained that he had granted the unprecedented interview because publicity was necessary for the bombing campaign he had launched in 1997 against Cuba’s tourist industry. We also felt he wanted to see his side of the story published, believing it would aid the anti-Castro cause.

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 Aruba, Mr. Posada handed me three pages of notes he had written in Spanish and English. “Ideology,” he had written at the top in Spanish. They included this observation:

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 Union City, Miami, Guatemala, and Venezuela with Mr. Posada’s collaborators and government investigators, and my interviews of Mr. Posada, Larry Rohter and I prepared three new articles. The Times published the first article on page one on Sunday, July 12, 1998. under the headline A BOMBER’S TALE: Taking Aim at Castro; Key Cuba Foe Claims Exiles’ Backing. The article stated:

Luis Posada Carriles, said he organized a wave of bombings in Cuba last year at hotels, restaurants and discotheques, killing an Italian tourist and alarming the Cuban Government. Mr. Posada was schooled in demolition and guerrilla warfare by the Central Intelligence Agency in the 1960's…..

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 Mexico in 1976, as a Cuban exile who delivered money to him from Miami. (Exhibit 2).

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 Cuba. We reported that he said that he overheard the men talk of assassinating Fidel Castro at a conference of Latin American heads of state to be held in Margarita Island, Venezuela. Mr. Alvarez reported this to Guatemalan security officials and when they did not respond, he wrote a letter that eventually found its way into the hands of Venezuelan intelligence agents and the U.S. FBI. (Exhibit 3).

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 Guatemala, and never spoke with him again. (Exhibit 3).

The article reported that Mr. Alvarez told us about possible links between the plotters in Guatemala and Cuban exiles living in Union City, N.J., who Mr. Alvarez said were wiring money to Mr. Posada. (Exhibit 3). Mr. Alvarez said events in his office rapidly made clear that Mr. Posada’s main interest was waging war in Cuba against Fidel Castro. (Exhibit 3).

The article contained Mr. Alvarez’s detailed account and description of how Mr. Posada moved explosives to Cuba. (Exhibit 3). It reported that in August, 1997, at the height of the bombing campaign in Cuba, Mr. Alvarez had intercepted the FAX that Mr. Posada had sent from El Salvador and signed “Solo” and that Mr. Alvarez gave the FAX to Guatemalan intelligence. The FAX identified Abel Hernandez, who is the owner of Mi Bandera (My Flag), a restaurant in Union City as well as a Western Union office, a Cuban-American community just across the Hudson River from Manhattan. At the restaurant's entrance, one of Mr. Posada’s paintings faced a photograph of Mr. Hernandez arm in arm with Jorge Mas Canosa, the late founder of the Cuban-American National Foundation. Three other men named in the FAX also lived in Union City and at least two belonged to the Union of Former Political Prisoners, an exile group whose members have served long and harsh terms in Cuban prisons and are committed to Castro’s overthrow by any means. (Exhibit 3).

The two articles published on July 12, 2006, were accompanied by a timeline chart of Mr. Posada’s life from his birth through the commencement of the Havana hotel bombings in 1997. The last entry read, “APRIL 1997 -- Bombs begin to explode at Havana’s better hotels, an operation Mr. Posada says he directed.” (Exhibit 2).

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 U.S. law enforcement agencies over the course of four decades. (Exhibit 4). In the following passage, Mr. Posada explained why he did not believe that the United States could prosecute him for his involvement in attacks on the Castro regime:

As Mr. Posada sees it, because he does not stage his anti-Castro activities from within the United States, his activities should be of no concern to the American authorities. “What I do is from Latin America, and my targets are inside Cuba,” he said. “I am not a citizen, so they do not have power over me.”

(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 United States v. Alfonso, No. 3:97-cr-00257-HL-1 (D.P.R. Aug. 25, 1999) (D.E. 123).

Mr. Rohter and I then prepared a further article for the Times which was published on August 26, 1998, under the headline, Cuban Exile Leader Among 7 Accused of Plot (Exhibit 20). The article reported that the lawyer for Mr. Alfonso, Ricardo Pesquera, stated that the Government was “opening a Pandora’s box they're going to regret” and that he vowed to demand access to every CIA and FBI document on nearly 40 years of plots, some of them Government-organized, to kill Mr. Castro. (Exhibit 20).

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 United States support of efforts to overthrow Castro, evidently worked because six of the defendants were acquitted on December 8, 1999, by the jury in Puerto Rico. See United States v. Alfonso, No. 3:97-cr-00257-HL-1 (D.P.R. Dec. 8 & 21, 1999) (D.E. 344 & 348). The seventh, Mr. Bautista had been severed because he was arrested in Miami before the trial for smuggling cocaine. United States v. Alfonso, No. 3:97-cr-00257-HL-1 (D.P.R. Nov. 21, 1999) (D.E. 306).

Luis Posada Arrested in Panama,

then Released & Returns to the United States

In November 2000, Mr. Posada, along with three collaborators, was arrested in Panama regarding an alleged plot to assassinate Fidel Castro. (Exhibit 14) (R&R at 5). The charges were dropped, but on April 20, 2004, he was convicted in Panama of crimes against national security and counterfeiting public records. (Exhibit 14) (R&R at 5). He was sentenced to eight years of imprisonment, but was released on August 25, 2004, after outgoing Panamanian President Mireya Moscoso pardoned him. (Exhibit 14) (R&R at 5). His pardon followed intense lobbying from several hardline exile groups and leaders in Miami, including several representatives to Congress.

On or about April 13, 2005, Mr. Posada’s attorney filed an application for political asylum in the United States, not long after Mr. Posada was seen in and around Miami. His lawyers subsequently would claim that on March 26, 2005, Mr. Posada had entered the United States illegally by crossing the border from Mexico near Brownsville, Texas and then made his way to Florida. (Exhibit 14) (R&R at 5).

. In the midst of the news of Mr. Posada’s return to the United States, an FBI agent phoned me and asked if I voluntarily would share my copies of FBI and CIA files regarding Mr. Posada. When I asked why, he said, “Do us a favor. We can’t find ours.” Later, I would learn that the Miami bureau of the FBI had closed its file on Mr. Posada and that the closure had greenlighted or allowed the destruction of extensive evidence regarding Mr. Posada, reportedly some five boxes of materials. On May 3, 2005, the Venezuelan Supreme Court approved an extradition request for Posada. Speaking the same day in Washington, D.C., State Department Assistant Secretary, Bureau of Western Hemisphere Affairs Roger Noriega stated somewhat incredibly that Posada might not have been in the United States and that charges against Posada “may be a completely manufactured issue.” (Exhibit 22) (BBC News).

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 U.S. law enforcement agencies. He granted me an interview in my role as a reporter for The New York Times, not as a prosecutor for the US government.

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, May 17, 2005, Mr. Posada appeared at a news conference in Miami-Dade and announced his intention to leave the United States. He was then detained by Immigrations & Customs Enforcement agents of the Department of Homeland Security. (Exhibit 14) (R&R at 5). Posada’s arrest presented diplomatic problems because his extradition had been sought by both Cuba and Venezuela. His arrest also coincided with large anti-Posada protest demonstrations in Havana, estimated in the hundreds of thousands. (Exhibit 26). Relatives of the victims of the Cubana bombing also protested in the US.

The Department of Homeland Security placed Mr. Posada in detention in a federal facility in El Paso, Texas shortly after his arrest and reportedly charged him with entering the country illegally. On August 8, 2005 the Justice Department withdrew its subpoena of me instead of responding to my petition to quash. (Exhibit 27).

Mr. Posada’s Limbo

On September 27, 2005, an immigration court denied Mr. Posada’s request for political asylum and found him removable from the United States either to Cuba or Venezuela for violating the immigration laws of the United States. (Exhibit 14 at 1-2).

On September 28, 2005, the same immigration judge ruled that Mr. Posada could not be deported because he “faced the threat of torture in Venezuela.” The Venezuelan government reacted by claiming that the United States had a “double standard in its so-called war on terrorism.” (Exhibit 28). The judge had no recourse as the U.S. government did not produce a single witness in its prosecution of Mr. Posada.

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 United States within 90 days. See 8 U.S.C. §1231(a)(1). It is my understanding that an alien may obtain a deferral of removal beyond 90 days, however, by showing a substantial likelihood that he would be tortured or killed upon his removal to his countries of nationality. 8 CFR § 208.17 (implementing article III of the Convention Against Torture). Mr. Posada applied for and obtained such a deferral. (Exhibit 14 at 2).

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 Clark v. Martinez, 543 U.S. 371 (2005); Zadvydas v. Davis, 533 U.S. 678 (2001).

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 September 11, 2006, U.S. Magistrate Norbert J. Garney entered a recommendation that Mr. Posada must be released. (Exhibit 14). The order began as follows:

Petitioner is a 78-year-old native and citizen of Cuba and naturalized citizen of Venezuela. As observed by the IJ, Petitioner’s “case reads like one of Robert Ludlum’s espionage thrillers, with all the plot twists and turns Ludlum is famous for.

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 United States, that Mr. Posada should not be prosecuted. It also appears that the Government is hesitant to state this view openly due to the criticism that it likely would engender.

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 Cuba for almost half a century.” He explained that he needed the assets to deliver them to the International Finance Bank, “which lent me part of the money to buy 10 airplanes, 8 ships and armaments, since I have not been able to pay them after having filed for bankruptcy.” (Exhibit 31 is the original document sent by Mr. Llama in Spanish and Exhibit 32, is an English translation of that document).

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 Miami. Antonio Alvarez was another obvious alternative source of detailed eyewitness testimony concerning Mr. Posada and those who had been working with him during the 1997 bombings. I was confident the Government would end its efforts to obtain materials or information from The Times or me because that evidence seemed so unnecessary either to any investigation, to obtain an indictment, or to prosecute those involved. But that was before I learned that the Miami FBI office, evidently bowing to local political pressure, had done the unimaginable.

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 Union City to Posada. FBI spokeswoman Judy Orihuela, confirmed the destruction but explained it as a “routine cleaning” of the evidence room. Once a case is closed, she said, it is greenlighted for destruction in order to free up space in The Bulky, as the evidence room is known. Ms. Orihela initially said that the Bureau believed that Posada had disappeared from sight, and was out of action, with his location unknown. Therefore, their reasoning went, it no longer warranted keeping his case file open. However, Posada had rarely been more active and it had been front page news as to his exact location. He and his three comrades were sojourning in a Panamanian prison for their attempted assassination on Castro at a summit held in Panama.

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 Havana bombings had been destroyed. One can only wonder why would the FBI Special Agent in Charge and the US Attorney agree to close, then destroy much of the Posada files and evidence? Does this not raise the question of possible obstruction of justice?

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 Panama for attempting to assassinate Fidel Castro. (Exhibit 33). Several months earlier on May 8, 2003, several South Florida members of Congress, including Reps. Ileana Ros Lehtinen and Lincoln Diaz Balart, had written on Congressional stationery to Panamanian President Mireya Moscoso asking for her to release Posada. (Exhibit 33). The Congressional leaders reportedly then sent a second letter again asking for Mr. Posada’s release on November 5, 2003. (Exhibit 33). This sequence of events demonstrated to me that important U.S. public officials were far keener on securing Mr. Posada’s release than in pursuing a criminal prosecution of him or those working with him against Fidel Castro notwithstanding their awareness of the material that The New York Times and other media had published about him in 1997 and 1998.

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 Venezuela in its case against Posada.

In 1992, a fire at the police station in Port of Spain, the capital of Trinidad and Tobago, destroyed many of the files in the Cubana bombing. When I called Dennis Ramdwar, Trinidad's former police commissioner, who had interviewed Hernán Ricardo and Freddy Lugo, he was initially helpful. But during subsequent calls, Ramdwar, now 82, said, "I don't want to talk about it. I don't want to get in between Chavez and the U.S." Nor did he want to comment on his files on Bosch and Posada. “They have powerful friends who protect them,” he said. “They did then and they do now.”

There were other thorny details in this case. To give you a sense of how challenging the environment in Miami is consider that the Miami-Dade Police Department's liaison to the FBI's Joint Terrorism Task Force is a detective named Luis Crespo Jr. Although well-liked, he is the son of Luis Crespo, one of the most famous anti-Castro militants, known as El Gancho, or The Hook, because of the hand he lost to an ill-timed bomb.

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 October 3, 2006, The Atlantic Monthly magazine published a new article that I wrote concerning Mr. Posada and others entitled Twilight of the Assassins. (Exhibit 34). Relying on newly declassified FBI and CIA files, I reported that 30 years after the downing of a Cubana airliner that still more evidence implicated Mr. Posada. For example, I reported that the two Venezuelans arrested for placing a bomb on the Cubana airliner made their the first call after the attack to the office of Luis Posada’s security company.” The article also reported for the first time that the Miami bureau of the FBI had closed its file on Mr. Posada and that this had cleared the way for destruction of evidence gather by the FBI concerning Mr. Posada’s operations.

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 October 6, 1976.”

The Grand Jury Subpoenas Me

On October 6, 2006, my attorney, retained by The New York Times, received a grand jury subpoena which directed me to appear and testify before the grand jury and to produce all tape recordings that I have of the 1998 interviews of Posada. My attorney, Mr. Julin continues to fight to keep me out of the Grand Jury on First Amendment grounds. At stake, is not only my right, but the right of the public to continue to have access to information that is critical to its participation in our democracy. In this case, my independence as a professional reporter allowed me to bring to the public through The New York Times information showing that a private war was being conducted against a foreign nation and the Justice Department was doing little, if anything, to prevent it notwithstanding the availability of abundant evidence that could be used to prosecute those involved in that effort.

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 Cuba in February, 1961, and volunteered for training by the Central Intelligence Agency-backed Bay of Pigs invasion two months later.

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 Cuba, it has had ample evidence so for a very long period of time but it chose not to do so. Instead, it has forestalled any prosecution of him and others and has sought to compel evidence – thus comprising the reporter’s privilege- from me only after it has destroyed its own files regarding Mr. Posada.

In early May, 2007, US District Judge Kathleen Cardone dismissed the sole charge brought by the US Justice Department against Luis Posada. The charge was not for acts of terrorism , but for having illegally entering the country. Just days before his trial was to begin in El Paso, the judge issued a blistering rebuke against the US government, chastising prosecutors for "fraud, deceit and trickery" in their attempt to try a terrorism case in an immigration court proceeding.

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 Miami’s political elite. With Posada was his old comrade and former cellmate, Orlando Bosch. In early 1972, Mr. Bosch was convicted of acts of terrorism and sent to federal prison. He later became a fugitive and was charged in the bombing of the Cubana plane downing in 1976. He spent 11 years in prison then returned to the U.S. Over the objections of the FBI, CIA and the Justice Department, Bosch was granted US residency by Pres. George H.W. Bush.

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

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Ann Louise Bardach October 10 , 2007

Santa Barbara., California.