by Ricardo Alarcón de Quesada
August 31, 2005

Right now there are two closely interconnected events, both related to terrorist activities within the US that have been scarcely covered by the big media. Having not seen much about them on TV screens or on the front pages of daily papers many Americans have probably not yet learnt that the two events are relevant to their own lives and safety.

But they are. The way the Bush Administration has handled these events should be a source of scandal at least for one reason: it is undermining American interests in the "war on terror."

An old friend is always a friend
More than three months have passed since Venezuela formally requested the extradition of Luis Posada Carriles, a Venezuelan citizen that escaped prison in that country, in 1985, while on trial under the accusation of masterminding the destruction of a civilian airplane and the killing of all 73 persons on board.

When it was first revealed that Mr. Posada had landed in Miami last March, US officials insisted that they knew nothing. They kept saying this, time and again, notwithstanding repeated statements to the contrary by Posada's pals and lawyers, until Posada himself appeared on TV and print interviews and, live, on a one day widely reported press conference in Miami. It was only then that he was kindly escorted to some special facility in El Paso, Texas. Immediately Venezuela officially asked for his extradition in accordance with the bilateral treaty that has existed between the two countries since 1922.

The US solicited more information and received it. But the US has not yet said if it will abide by its treaty obligations.

On the contrary, Mr. Posada has been immersed in a rather unique "migratory process." So far, the administration is dealing with him as if he were just a visitor whose papers should be further examined, instead of a notorious terrorist with a history very well documented in American archives and even in the media. Not simply a suspected terrorist, but a confessed one. And someone who is also a veteran fugitive of justice requested by Interpol for the last two decades.

Bush might have thought that by diverting public attention in such a manner he could get rid of the real issue, people would forget and the old friend would fly from justice again. He is, hopefully, wrong. He cannot do it again because in today's world, nobody is permitted to harbour a terrorist.

If any other country intended to do this it would suffer terrible consequences including mandatory sanctions, even the use of military force, by the international community, thanks precisely to Bush's efforts. It is written in stone words in UN Security Council resolution 1373 introduced by the US and approved unanimously on September 28, 2001. A resolution under Chapter VII of the UN Charter, that is, mandatory for everybody under threats of sanctions if not respected.

It may be worthwhile to remember that by resolution 1373 all States are called upon, inter alia, to "take appropriate measures... before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts" and to "ensure... that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorist."

Posada much more than alleged terrorist
And the Venezuelan extradition request is also backed by some very important and equally obligatory international legal instruments that have been and are of crucial importance in the fight against international terrorism. Specifically by the Convention for the Suppression of Terrorist Bombing and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. Both Conventions, signed and ratified by the US, are crystal clear and uncompromising: anyone accused of any action against civil aviation has to be prosecuted.

If for any reason the extradition is not granted, then the State where such an individual is found "without exception whatsoever" is obligated "to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the laws of that State" (Montreal Convention. Article 7).

There is no other legal alternative: extradite Posada Carriles to Venezuela or prosecute and trial him as if his crime had been committed in the US. Bush so far has chosen neither.

Bush's choice has been to protect Posada, the terrorist he is harbouring since March. He is probably confident not to be condemned by the Security Council where he has veto power. But the world will not pardon him for destroying the legal foundations of the efforts to eliminate international terrorism.

A show of gratitude
Early in 2001, when he first visited Miami after the 2000 election, at a public gathering with Orlando Bosch, also accused in the civil airplane bombing, and other well known terrorists, Mr. Bush felt really emotional and made a solemn promise. He will never forget what they did for him on that memorable November. He will always be grateful to them.

The show of gratitude would be the trial of five young Cuban men accused of infiltrating those same groups of terrorists, with the objective of informing Cuba of their plans.

From the indictments, the pre-trial motions, the presentations before the Court, all the way to the sentencing hearings it was recognized, in very explicit terms, by the Government that their only crime was opposing terrorism right there on US soil.

Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González were sentenced in the most disproportionate manner: together four life terms and 75 years. And that was not enough.

Every American should have the possibility of reading the transcripts of the sentencing hearings at the Miami Court in December 2001, to read what the prosecutors asked for, to read what the judge gave them.

There, in Miami, exactly three months after 9/11, the US Government insisted on a new legal theory they probably thought would be a turning point in the history of Law: "incapacitation."

As necessary as the severest sentences, it was extremely important for the Government that the Court also impose very specific prohibitions which would make it impossible for the defendants once they recovered freedom -- if they ever were to be free-, to try again to do what brought them to the courtroom. They should be "incapacitated."

The Court agreed entirely. It is there in the transcripts: "the terrorist's acts committed by others could not excuse the wrongful and illegal conduct of the defendant and the others accused" (Sentencing hearing 14 December 2001, page 43). On that basis the judge established an additional sanction to be operative after the defendant having served his entire sentence even when it was a life term: "As a further special condition of supervised release the defendant is prohibited from associating with or visiting specific places where individuals or groups such as terrorists, members of organization advocating violence, and organized crime figures are known to be or frequent" (Id. pages 45-46).

The accused, of course, appealed to the higher Court. It took a long and incredibly hazardous journey.

But on August 9, 2005 the Atlanta Court of Appeals decided to reverse their convictions and to nullify the Miami trial.

On May 27th, the UN Working Group on Arbitrary Detentions had determined that the deprivation of freedom of the five since September 1998 was arbitrary and illegal. In responding to the UN, the US said that there was a Court decision, one by the Miami District Court.

Now, the Atlanta Court of Appeals has declared that trial null and void. In spite of this, the Five remain incarcerated in high security federal prisons reserved for convicted criminals.

The US Government has not yet decided if it will appeal such an extraordinary decision. Furthermore, it has asked for an additional month to consider whether to ask for that or not.

The five are still in prison without being convicted now of anything. They are certainly fully "incapacitated" from doing any harm to the President's men.

Mr. Bush has proven that he was grateful to his friends.

After the UN determination and after the Court of Appeals ruling he has now to decide.

On the one hand, there is US and international Law. On the other, his good old friends. It is again his choice.
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Ricardo Alarcon de Quesada is Cuba's Vice President and President of its National Assembly.

Source: ZNet