The U.S. authorities had planned to sidestep the terrorism issue and try Posada for naturalization fraud and making false statements on his citizenship application after he slipped into the country in March 2005. The indictment alleged that Posada had lied about how he entered the country, claiming to have been smuggled over the Mexican border when evidence indicates he came by boat. He also denied ever having a Guatemalan passport when, "in fact, he had a fraudulent passport issued by that nation."
Immigration officials had detained Posada beginning in May 2005, with the expectation of deporting him. But the only countries that want him are Cuba and Venezuela, both of which consider him a wanted terrorist. Although Posada holds Venezuelan citizenship, fears that he would be tortured if sent back to either country prompted a judge to bar deportation to Cuba or Venezuela.
Posada had, in fact, escaped from a Venezuelan prison, where he was being held pending retrial he had been previously been acquitted by a military tribunal on the bombing of a Cuban airliner in 1976. When no other country offered to take him in and Posada began agitating for his release from detention, the government proceeded with its own criminal charges against him.
The government could have detained him indefinitely by branding Posada a terrorist or classifying him a danger to national security, and its failure to do so prompted the leaders of both Cuba and Venezuela to accuse Washington of hypocrisy for coddling the U.S.-trained Posada even as it proclaims a global war on terrorism. (Posada was trained at Fort Benning before the abortive Bay of Pigs invasion aimed at ousting Castro in 1961.)
Cuban exile groups and even several members of Congress challenged the fact that FBI investigators had visited Cuba to gather evidence against a man many exiles celebrate as a freedom fighter, pointing out that the Castro regime doesn't bother with the niceties of evidence when it routinely jails dissidents.
According to the Miami Herald, FBI agents visited the island last fall as part of its investigation into several bombings that occurred in Cuba in 1997, including one that killed an Italian tourist at a Havana hotel. Posada's detention case file includes an affidavit regarding his activities in Havana.
In it, Special Agent Thomas H. Rice of the FBI's Miami office detailed Posada's alleged involvement in five bombings that year. According to the affidavit, Posada claimed credit as mastermind of the Havana bombings and called the Italian's death a "freak accident" that did not disturb his conscience. "I sleep like a baby," Rice quoted Posada telling the New York Times in July 1998. "It is sad that someone is dead, but we can't stop." He blamed the tourist for his own demise, stating, according to the Times, "That Italian was sitting in the wrong place at the wrong time."
Rice's affidavit included information from three confidential sources interviewed by the FBI. The sources described how Posada and two other men recruited people to pose as tourists visiting Cuba, and smuggle a "putty-like explosive" into the country by hiding it in their shoes. One of the sources also provided a fax believed sent by Posada on August 25, 1997. Posada used the code name "Solo" and instructed a colleague that $3,200 would be sent by Western Union to further the bombing plot. Four of the bombs exploded on September 4, 1997, including the one that killed the Italian tourist at the bar at the Copacabana Hotel.
In building its case against Posada, Rice's affidavit explained, the FBI has also linked him to money transfers related to the bombings, and to the explosives believed to have been used in the attacks.
But following the El Paso court's finding on Tuesday, the strategy of using immigration law to put Posada behind bars looks to be in deep trouble and the fate of the aging militant remains very much a political hot potato for an Administration committed to its global counter-terrorism campaign, but also innately hostile to the two governments that want to put Posada on trial for terrorism.