The Lead Prosecutor in the Cuban Five Case Refused a DHS Request to Press Criminal Charges Against Posada Carriles

El Paso Diary: the Trial of Posada Carriles

By JOSÉ PERTIERRA Counterpunch.org Jan. 21, 2011

The U.S. Attorney who prosecuted the Cuban Five in Miami, Caroline Heck Miller, refused to press criminal charges against Luis Posada Carriles despite a request to do so from the Department of Homeland Security (DHS), testified DHS attorney Gina Garrett-Jackson today in court. Responding to defense questions, Garrett-Jackson, the DHS prosecutor who directed Posada's asylum case in 2005 said that she asked Caroline Heck Miller to charge Posada criminally, rather than simply rely on a deportation case. "I asked Heck Miller to consider criminal charges against Posada. However, she was not interested in that, and because of that, I stopped asking her for it."

The Cuban Five were convicted and given long sentences in Miami for conspiracy to commit espionage, despite the absence of evidence to prove that they had obtained any classified documents. One of them, Gerardo Hernández Nordelo, was also convicted for conspiracy to commit murder in connection with the shoot down of two airplanes from Brothers to the Rescue, despite the lack of proof that he had any knowledge of the alleged plan to shoot the planes down.

Heck Miller is the Miami prosecutor who insisted on bringing the case of the Five to trial, refused to move the case out of Miami, and was instrumental in seeing that they would be given unjustly long sentences.

Incredible but true, as we learned today, she is also the prosecutor in Miami who decided not to press criminal charges against Luis Posada Carriles in 2005: the man who directed the terrorist campaign against Cuba that the Five tried to stop in order to save lives. These are some of the hidden truths that this legal proceeding against Posada Carriles is uncovering here in El Paso.

Morning greetings

After a four-day recess, the Posada case took up where it left off last week. The prosecutors arrived first. Timothy Reardon III entered dressed in a blue pinstriped suit, crisp white shirt, white pocket handkerchief, light blue tie and . . . a red right eye. He told me that it is not "pink eye", but a burst a blood vessel. Jerome Teresinski, another of the prosecutors, and two FBI agents who are handling the Posada case accompanied Reardon.

Shortly after 8:30 on the dot, Luis Posada Carriles, accompanied by his bodyguard, entered the courtroom with one of his attorneys, Felipe Millan. Everyone exchanged cordial good mornings.

When Hernández, the main defense attorney entered, Posada stood up, agitated. "I have to talk to you," he said. They went into the hallway to speak privately.

A Posada or a Picasso?

We began at 9:10 a.m. Before calling for the jury, there were certain preliminary matters to be decided. Posada is accused of perjury for lying to U.S. immigration authorities on the things he told the New York Times during an interview he gave to the journalists Ann Louise Bardach and Larry Rohter in 1998. Specifically, whether he had been the mastermind of a conspiracy to detonate bombs in Havana in 1997, one of which killed an Italian tourist named Fabio Di Celmo. Posada now denies saying that to the journalists.

To show that Posada was satisfied with Bardach's interview, the prosecution subpoenaed a painting of his that Luis Posada Carriles had given her.

Prosecutors want to show the jury that Posada was so pleased with his meeting with the journalist that he gave her a painting, and even dedicated it on June 8, 1998, "To my friend Ana, who understands our cause for a free Cuba."

Bardach opposes having to loan her "valuable work of art" for purposes of this trial, because it would deprive her of the ability to enjoy the aesthetic value of the piece for a stretch of time, and because transporting the painting would be inconvenient to her. The painting measures six feet square. Ms. Bardach filed a motion in which she offered to send photos instead of the painting. "The motion is silly," said Reardon to the judge this morning. "It is not up to Ms. Bardach to decide what evidence the prosecution will show the jury," he added. However, in an ironic tone, he offered to return the painting immediately after the trial's conclusion so that "she should not be much time without her precious possession."

The judge ruled immediately. Bardach is obliged to bring her painting to El Paso so that Reardon can show it to the jury and, of course, to the public. It's a formal presentation of proof, not an artistic exhibition. It's difficult to believe that anyone with a minimum of taste would want to have it in his or her living room. Anyone who's seen his work would readily admit that Posada is no Picasso. A signed Posada has no more worth than one done by a fourth-grade student.

Moving on from the topic of the painting, the judge called the jury at 9:18 a.m., and we continued with the cross-examination of the INS attorney, Gina Garrett-Jackson. She was responsible for the Posada case during the immigration proceedings in 2005, and it was she who questioned him before Judge Abbott.

Under Garrett-Jackson's questioning, Posada had said that he entered the United States via the border with Mexico and that he didn't know anything about the bombs that exploded in Havana in 1997, one of which killed the Italian Fabio Di Celmo in the Copacabana Hotel. The prosecution maintains that that is a lie. That Posada entered the country on a boat called the Santrina and that previously he had boasted of being the mastermind behind the bombings in Havana. He even told the New York Times, "that Italian was in the wrong place at the wrong time. I sleep like a baby."

Gina Garrett-Jackson's testimony

Posada's attorney, Felipe Millan, a specialist in immigration cases, maintains that Garrett-Jackson entrapped Posada Carriles. That she wanted to try him for perjury and had no interest in immigration proceedings. Millan cross-examined her closely about the prosecutors and federal agents that collaborated with Garrett-Jackson in 2005 on the Posada case. The list is long: 1) Noel Espada, an INS agent who went to Guatemala to interview witnesses; 2) a prosecutor by the name of López who accompanied Espada to Guatemala; 3) an INS agent named Capanelli, who kept up with the case through emails sent to him by Garrett-Jackson; 4) Steve Usher, another INS agent; 5) Chris Torres, another INS analyst; 6) Joel Ardiner, who works in the main immigration office in Washington, in the office of National Security Law; 7) Riah Ramlogan, the main immigration attorney in Miami; 8) Omar Vega of the FBI; 9) Mr. Rice, of the FBI; 10) Mr. Pereira, also of the FBI, and 11) Caroline Heck Miller, the federal prosecutor in Miami in charge of the Cuban Five case, and of whom Garrett-Jackson requested that criminal charges be presented against Posada and inexplicably refused to do so.

Garrett-Jackson also made reference to Posada Carriles' star witness during his asylum proceedings, Joaquín Chaffardet. During her cross-examination, she said that she recalled that Chaffardet testified during the day of August 30, 2005, that Posada would be tortured in Venezuela if he were deported there. Millan did not ask Garrett-Jackson why she had not cross-examined Chaffardet.

Chaffardet's testimony was key in the 2005 asylum case. He told the judge that Venezuela tortures its prisoners, that Cuban agents would go to Venezuela to torture Posada Carriles and that the Venezuelan government would allow it. If Garrett-Jackson had questioned him, perhaps the judge might have realized that Chaffardet was a witness biased in favor of Posada, because the "witness" was the Cuban-Venezuelan's boss when he worked for the Venezuelan intelligence services, was later his attorney in Caracas, and still later, charged -- in 1985 -- for having helped Posada Carriles escape from prison in San Juan de los Moros before the conclusion of the trial against him on 73 charges of murder resulting from blowing up a passenger airliner.

As a witness, Garrett-Jackson is slow, laborious, and boring. She tends to give long explanations and to not answer questions precisely. She is prone to meandering responses to questions that exasperate everyone. However, when Millan told her that she was looking for ways to entrap Posada with criminal perjury charges and this was why she asked him so many questions in 2005 about how he had entered the United States, Garrett-Jackson came to life, raised her voice, and said firmly, "After having seen him, I asked myself, 'Is it possible that he crossed the Rio Grande?' That's why I asked those questions, not for any other reason."

Posada is 83 years old and walks with certain difficulty. He does not appear to any longer have the strength his victims in Venezuela recall: that of a man capable of rupturing a liver with a single punch or forcing a pregnant woman to deliver with a single kick. I don't say this figuratively. It happened.

The immigration judge in 2005 ordered Posada Carriles to be deported, but not to Cuba or to Venezuela, because he said Posada would be tortured in both countries. Garrett-Jackson said that she had decided not to appeal that decision, after having consulted with her superiors.

María Semeraro's testimony

The second witness of the day was María Semeraro. A 52-year-old woman, tall, strong, with a burgundy colored mini-skirt, and curly bleached blond hair. She testified that she is Cuban American, and that she arrived in the United States at the age of nine. She works for the FBI as a translator-transcriber.

It was she who transcribed the recordings of the asylum proceedings that took place in 2005. Bridget Behling, from the prosecution's legal team, got Semeraro to declare before the jury that the transcriptions they have are legitimate and reflect the recordings that were made during the immigration proceedings between June and August of 2005.

"Art" Hernández, Posada Carriles's attorney, got Semeraro to admit that she could hear the voices of Posada Carriles, those of the two attorneys and the judge, but not that of the interpreter when English was being translated into Spanish, since the interpreter directed the interpretation solely to Posada Carriles and in a very low voice. He also got Semeraro to acknowledge that words can be translated in different ways.

The judge ended the proceedings at this point. The case will continue Wednesday, at 8:30 a.m.

Side notes

Venezuela is not authorized to ask questions during this proceeding. We can only observe. I would have liked Gina Garrett-Jackson to answer the following:

1. You testified that you concluded that Posada Carriles would be tortured if he were deported to Cuba, but that you arrived at that conclusion without first receiving any evidence and before hearing any testimony. Why? On what did you base your decision?

2. What evidence do you have that, apart from those who are held at the U.S. military base in Guantánamo, prisoners are tortured in Cuba?

3. Why did you decide not to cross-examine Joaquín Chaffardet during the asylum case in August of 2005?

4. Do you think it unimportant to make the immigration judge aware that Chaffardet was a biased witness in favor of Posada Carriles?

5. Do you think it was unimportant to establish that Chaffardet was Posada's boss at the DISIP (Venezuelan Intelligence) in the early 1970s, Posada's attorney in Caracas, and that he was charged in Venezuela for having helped Posada escape from prison?

6. During the asylum proceedings in 2005, every time that an important decision had to be made, you asked for a recess and made a call on your cell phone. Who were you calling? What instructions did you receive? Who was in charge of strategy in the immigration case of Luis Posada Carriles?

7. You testified that you work for the Department of Homeland Security in Miami. Posada's asylum case was in El Paso. Who decided to send you to El Paso to litigate it? Why? Have you worked on other cases in El Paso, or is this your first and the last?

8. The recordings from Posada's asylum case show that you did not utilize information from the records of the federal government to question him. That you only used the interview that he gave the New York Times. Why? Did you not have any FBI records at your disposal?

9. Cuba gave the FBI proof about Posada Carriles' involvement in the bombing campaign in Havana. Did the FBI share these documents with you? If so, why didn't you use them?

10. Why didn't you present witnesses against Posada Carriles during the asylum proceedings of 2005? Did you speak with the FBI about having agents who had knowledge of Posada Carriles' terrorist history testify?

11. Do you know that Caroline Heck Miller is the principal prosecutor in the case of the Cuban Five? Do you know who the Five are? Do you know that they were convicted in Miami, in what a three-judge panel in the Circuit Court in Atlanta said was a "perfect storm of prejudice"?

12. Do you know the reasons that Caroline Heck Miller didn't want to bring criminal charges against Posada Carriles? What opinion do you have of that decision?

13. What was the true purpose of the immigration proceedings in 2005: to protect or to prosecute him?

José Pertierra practices law in Washington, DC. He represents the government of Venezuela in the case to extradite Luis Posada Carriles.

Translated by Machetera. She is a member of Tlaxcala, the international network of translators for linguistic diversity.