Ann Louise Bardach - Why the FBI Is Coming After Me, The Washington Post - Sunday- November 11, 2006

The Washington Post - Sunday- November 11, 2006
Outlook

Why the FBI Is Coming After Me

By Ann Louise Bardach

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 I’d 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.

Héctor 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 — Héctor’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 Department’s 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.

http://www.theatlantic.com/doc/200610u/posada-notes.

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
Department’s 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 Héctor Alfonso, whose father is
also a legendary anti-Castro militant, known as Héctor 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.
bardachreports@aol.com