Feds destroy boxes of evidence, supoena journalist
Why the FBI Is Coming after Me
As a rule, I don't believe in conspiracy theories. They tend to be tidy and selective, whereas life seems so random and messy. But the case of Cuban militant and would-be Fidel Castro assassin Luis Posada Carriles has sorely tested my convictions.
I've been writing about Posada for nearly a decade. In 1998, I interviewed him in Aruba for a series of articles in the New York Times. He was a fugitive who had escaped from Venezuela in 1985 while awaiting trial in the 1976 bombing of a Cuban passenger plane that killed all 73 people aboard –the first deadly act of airline terrorism in the Americas. Posada has maintained his innocence, but in a rare instance of unanimity, the CIA and the FBI, as well as Venezuelan, Trinidadian and Cuban intelligence, concluded that he and fellow militant Orlando Bosch had masterminded the bombing.
Last year, I wrote an Outlook article about Posada's surprise arrival in Miami, where he filed a claim for political asylum. Not only did this move strike many as brazen, but it also seemed incomprehensible that the Bush administration, so committed to its War on Terror, could have allowed someone of Posada's notoriety to slip into the country.
Soon after, Homeland Security Department officials got around to arresting Posada and charging him with illegal entry. I assumed that the Justice Department would act on his self-admitted history of paramilitary attacks and extradite him somewhere, and that I'd just continue to cover his case. Instead, the government has dithered for a year and a half while Posada languishes in an immigration jail in Texas.
And I, meanwhile, have found myself an unwitting player in the tangled drama of the United States and Luis Posada.
Not long after Posada's arrest, FBI and Homeland Security agents began to phone me, seeking information about the New York Times series. One agent came right out and asked if Id share my research materials as well as my copies of FBI and CIA files on Posada. Do us a favor, he said. We can't find ours. I laughed politely, assuming it was a strained attempt at humor. But he wasn't kidding.
In August 2003, the Miami bureau of the FBI made the startling decision to close its case on Posada. Subsequently, according to FBI spokeswoman Judy Orihuela, several boxes of evidence were removed from the bureau's evidence room, or the bulky, as it is known. Among the documents that disappeared was the original signed fax that Posada had sent to collaborators in 1997, complaining of the U.S. media's reluctance to believe reports about a series of bombings in Cuba, which he hoped would scare tourists and investors away from Castro's island.
I had shown Posada a copy of this fax during my interviews with him. The fax had been intercepted by Antonio Alvarez, a Cuban exile and businessman who had shared office space with Posada in Guatemala in 1997. Alarmed, Alvarez had notified agents from the FBI's Miami bureau, but when they took no action, he had turned to the Times.
If there is no publicity, the job is useless, Posada wrote in the fax. The American newspapers publish nothing that has not been confirmed. I need all the data from the [bombing of the] discotheque in order to try to confirm it. It was signed Solo, his nom de guerre.
Posada fretted to me that the fax could cause him problems with the FBI. But he had no need to worry.
Htor Pesquera, the special agent in charge of the Miami FBI bureau at the time, showed little interest in Posada's case. To his agents' distress, he enjoyed socializing with Miami's hard-line exile politicians, and denied agents requests for wiretaps on Bosch, known as the godfather of the paramilitary groups, as well as other militants suspected of ongoing criminal activity. Pesquera shuttered investigations into exile militants, agents say, before retiring in December 2003.
Without the materials that were removed from the evidence room, which also included cables and money transfers between Posada and his collaborators in the Cuban bombings, a criminal prosecution of Posada is severely hobbled. Orihuela, the FBI spokeswoman, explained that the supervisory agent in charge and someone from the U.S. attorney's office would have had to sign off before evidence is removed and destroyed. She confirmed that the approval to dispose of the evidence was given by the case agent on Posada, who happened to be Ed Pesquera, Htor's son.
Though Posada's case was reopened in May 2005 and is now pending, the decision to close it in the first place baffled many longtime FBI and Miami Dade police investigators. Rarely had Posada been more active. In addition to the Cuban bombing campaign, he and three comrades had been arrested in Panama in 2000 in connection with an attempt to assassinate Castro.
In late April last year, while I was out at the hair salon, my husband phoned to tell me that two Department of Homeland Security agents had arrived at my home in Santa Barbara, Calif., to serve me with a subpoena. I told him to ask the agents to leave and refer their inquiries to the Times. Eventually, they served the Times lawyers. Over the next few months, a dance played out in the U.S. District Court for the Southern District of Florida. After the Times filed its motion to quash the subpoena, the Justice Department withdrew it in August 2005.
Later, while I was working on an article about Posada for the current issue of the Atlantic Monthly http://www.theatlantic.com/r/0oBQzWnJ15Y%3D%0A
One of his attorneys told me that Posada's case is being handled at the highest levels of the Justice Department. All they have to do to detain Posada indefinitely, he explained, is to have Attorney General Alberto R. Gonzales certify him as a national security threat. But they're not going to do that, he added. That would create problems for the Bush people with their Cuban-exile base in Miami. In other words, the government does not want to mount its own case and risk alienating Cuban American allies. Better it should get reporters to build its case.
On Sept. 11, the Justice Department whirled into action, perhaps emboldened by the symbolism of the date. It struck a plea deal for about two years in prison for Posada's comrades Santiago Alvarez and Osvaldo Mitat, who had been facing up to 50 years in prison for the illegal possession of hundreds of firearms. On the same day, a magistrate judge in El Paso recommended that Posada be released, as Justice had yet to file charges. (On Nov. 3, the presiding judge gave the government 90 days to make its case.) And later that afternoon, a Justice lawyer called the Times and said that another subpoena would be issued for materials relating to Posada.
On Oct. 6, the 30th anniversary of the bombing of the Cuban plane (you have to give them credit for timing), I received a new subpoena. This one, issued by a federal grand jury in Newark, was requested by Gonzales. They may be ambivalent about the war on terrorism over at the Justice Department, but you can't question their dedication to their war against the Fourth Estate. For my part, I found myself in a peculiar pickle: contemplating how far one should go to protect the civil liberties of an accused terrorist.
My case, thankfully, does not involve confidential sources. And both the law, according to the U.S. Court of Appeals for the 3rd Circuit, and the Justice Departments own guidelines, are clear: Prosecutors cannot compel reporters to turn over information that they can obtain through other means. Only after other avenues have been pursued should the government turn to the media to build a prosecution.
Call me a strict constructionist, but somehow I do not believe that our founding fathers meant to allow the government to raid the news media for its work files after it bungles a case and destroys crucial evidence.
The Justice Department's new subpoena says that it wants only the tape recordings from my interview with Posada. Aside from the huge intrusion and inconvenience of searching through about 15 years worth of research materials, the entire ordeal strikes me as a waste of time.
Posada agreed to meet with me because he wanted to publicize his efforts to topple Castro. I recorded as much as possible in the event that Posada may later have regrets. Which he did. But over the two days I spent with him, he revealed a good deal about his various bombing campaigns and his general philosophy.
My co-author, Larry Rohter, Times editors and I picked out the strongest and most interesting parts of the transcripts and notes for our stories. Contrary to what the great minds at Justice may think, we don't hold back the best bits –we publish them! And just last month, the Atlantic published on its Web site Posada's actual notes to me, in which he offered editorial guidance. He does not admit the bombs in the hotels, but he does not deny either, he wrote.
The FBI and the Justice Department are filled with dedicated public servants, but it is the political stratum that makes the final decisions. And for them, Posada may be a man who knows too much. His attorneys say that he was a paid CIA agent from 1959 until the mid-1980s. Indeed, upon his escape from prison in 1985, Posada promptly found employment running the Iran-contra field operation in El Salvador. Bosch, his co-defendant in the Cuban plane bombing, was championed by none other than Jeb Bush in his bid for U.S. residency, which was granted in 1991 by President George H.W. Bush over the objections of the FBI, the CIA and the Justice Department.
And there are other thorny details in this case. The Miami-Dade Police Departments liaison to the FBI's Joint Terrorism Task Force has been a well-regarded detective named Luis Crespo Jr. who is the son of Luis Crespo, one of the most famous anti-Castro militants, known as El Gancho, or The Hook, because he lost a hand to an ill-timed bomb.
Working alongside Crespo Jr. is detective Htor Alfonso, whose father is also a legendary anti-Castro militant, known as Htor Fabian. Assigned to the MDPD intelligence unit, Alfonso's son has access to the most sensitive information on homeland defense, including on Cuban exile militants. Say you had a tip for the FBI about a bombing, muses D.C. Diaz, a 27-year department veteran. Would you want to give it to a guy whose father is Luis Crespo?
Before the government starts tampering with the Constitution's protections of the press, it needs to do some housecleaning. A good start would be a special prosecutor to look into who ordered the removal of the Posada evidence, and why. If it then decides that it wants to go further, it might peruse the 45 years worth of CIA and FBI files on Posada that detail his paramilitary career. And there are a dozen or so comrades of Posada's in Miami and New Jersey who know a great deal more than I do.
But that's assuming that the government wants to prosecute Posada. It has declined to do so for decades. And nothing so far suggests that it is inclined to start now.
Ann Louise Bardach is the author of Cuba Confidential (Vintage) and the editor of Prison Letters of Fidel Castro, forthcoming from Avalon in February. She is the director of The Media Project at UC Santa Barbara/PEN USA. firstname.lastname@example.org