Wednesday, August 20, 2008

Back to Court (Part 1)

Last week, a federal appeals court in New Orleans ruled against last year's release of Luis Posada Carriles from US custody.

When Posada was released last year, some news reports (including the Miami Herald) included a PDF link to the 38-page decision by the court judge, Kathleen Cardone. But, this recent appeals court ruling did not receive the same treatment, despite it being about the same length: 35 pages. Instead, the recent Herald report (by Alfonso Chardy) used a link to highlight an older Herald article, and not the relevant appeals court ruling. Well, I took the time to find the unpublished opinion at the Fifth Circuit Court of Appeals website, and found the ruling to be very informative. Read it here [PDF] at your leisure.

I also discovered that this ruling got less coverage in general than last year's ruling by Judge Cardone. Perhaps because it wasn't so surprising and sudden as Judge Cardone made it out to be. But, be assured that this recent appeals court ruling is incredibly informative and a sobering opinion that counters every argument that allowed Luis Posada Carriles to be released in the first place.

But before reviewing the Fifth Circuit Court's opinion, I want to quickly go over some of last year's reactions to the release of Luis Posada Carriles.

Posada was released on May 8th, 2007 by Judge Kathleen Cardone in El Paso, Texas. By May 11th, some opinions in the mainstream media surfaced. Columnist Eugene Robinson expressed his surprise, highlighting the inconsistency of waging a "War on Terror":

"I'll wager that the evidence against Posada, which I find compelling, is more solid than the secret evidence against most of the detainees at Guantanamo. But Posada's alleged crimes were against the Castro regime."

Columnist Rosa Brooks for the LA Times (also a law professor) had similar thoughts:

"So for now, Posada's a free man — even though the administration has sufficient evidence to arrest him for his role in either the 1976 airliner bombing or the 1997 Havana bombings. For that matter, Posada easily could be detained under Section 412 of the Patriot Act, which calls for the mandatory detention of aliens suspected of terrorism."

But, the editorial staff at the Miami Herald took a more nuanced position, mostly supportive of the decision by Judge Cardone, whom they described as a "courageous judge":

"The reason this case has attracted so much attention is that Mr. Posada is not just another Cuban immigrant. To his supporters, he is a genuine hero of the anti-Castro cause. To his detractors, he is a vicious terrorist. To Judge Cardone, he was like any other defendant who is entitled to certain rights under the U.S. Constitution."

The Herald editorial ends with: "The alternative [for the US prosecution] is to come up with evidence that Mr. Posada is a terrorist and present it before an impartial judicial forum. If it can't do this, the government should leave him alone."

This position by the Herald is quite odd, especially now that Judge Cardone's decision has been reversed. I would understand this bold position by the Herald if it had come AFTER the appeals court had sided with Judge Cardone, but instead it seems that the Herald was easily swayed by their "courageous judge." This is clearly a sign of bias by the editorial staff at the Miami Herald.

The Herald's editorial basically stands with every important argument made by Judge Cardone, leaving no room for doubt. But, there were people with doubts about the decision.

A very objective and informed opinion was expressed by Kevin Jon Heller, a professor of law in New Zealand, expert on international criminal law, and writer for the Opinio Juris blog. Jon Heller expressed his thoughts about the Posada case the day after Posada's release, and raised FOUR good points about Judge Cardone's decision. Those four points coincided (almost identically) with the opinion of the Fifth Circuit Court of Appeals in New Orleans. It was certainly prophetic.

So the doubts were there at the time, and they were good ones. How unfortunate that the Herald editorial staff didn't take a more cautious position.

Let's review the opinion of the Fifth Circuit.

[Part 2]