Why the Bush Administration May Let a Terror Suspect Go Free

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A billboard in Havana reads "Coming Soon to North American Courts, The Assassin, with Posada Carriles and George W. Bush "

The Bush Administration prefers to paint the War on Terror in stark terms of good and evil, but the reality is not all terror suspects are considered equal. That much was clear on the same day that the nation solemnly recalled the fifth anniversary of the 9/11 attacks, when a federal magistrate recommended freeing a man being held on immigration charges who is also awaiting retrial in Venezuela for the bombing of a Cuban airliner 30 years ago that resulted in the death of all aboard, including the Cuban national fencing team.

Cuban militant Luis Posada Carriles has been fighting for his release since May 17, 2005, when Department of Homeland Security officials arrested him in Miami for entering the country without having a visa or passing through passport control at the border. But in a move that may come back to haunt the U.S. government Posada, despite his suspected terrorist past, was held on immigration violations, not terror-related charges.

Posada, a self-styled freedom fighter, has been involved in anti-Castro activities for decades. In the early 1960s, he worked with the CIA in an attempt to overthrow Castro during the Bay of Pigs invasion and in 2000 was arrested in Panama in an alleged plot to assassinate the Cuban president, according to court documents filed in the Fifth District Court in El Paso, where he is being held in detention. The charges in the assassination attempt were later dropped, but Posada was charged with national security and counterfeiting crimes and received a sentence of eight years in prison. The Panamanian president later pardoned him.

Although he lived in the United States in the early 1960s, Posada has spent most of the last four decades in several Latin American countries. He claims he came in through Mexico by car and then took a bus to Miami. But it is widely believed that a friend may have smuggled him into Miami by boat. The federal magistrate reviewing his case noted in court documents that the 78-year-old is a native and citizen of Cuba, as well as a naturalized citizen of Venezuela and that his "case reads like one of Robert Ludlum's espionage thrillers, with all the plot twists and turns Ludlum is famous for."

In March, Robert E. Jolicoeur, a Field Office Director with U.S. Immigration and Customs Enforcement, made the case that Posada is a menace to society. "You have a history of engaging in criminal activity, associating with individuals involved in criminal activity, and participating in violent acts that indicate a disregard for the safety of the general public and a propensity for engaging in activities... that pose a risk to the national security of the United States," Jolicoeur wrote to Posada in a report obtained by TIME, explaining why the government sought to continue his detention. Jolicoeur pointed out that Posada's own statements to a reporter (which he later dismissed as a language misunderstanding) linked him to a series of hotel and restaurant bombings in Cuba in 1997.

"Additionally, a review of your arrest and criminal history shows that following a trial and acquittal on criminal charges in Venezuela, your acquittal was overturned on appeal, and, while pending retrial on the charges, you made several escape attempts and eventually succeeded in escaping from prison," Jolicoeur wrote, referring to the case of the downed Cubana Airliner. "Due to your long history of criminal activity and violence in which innocent civilians were killed, your release from detention would pose a danger to both the community and the national security of the United States."

Posada has consistently denied involvement with the airline bombing. After his escape from the Venezuelan prison in 1985, he went to El Salvador, where he reunited with the CIA. He went to work assisting Oliver North in providing the Nicaraguan Contras with weapons and supplies. After his involvement in the Iran-Contra Affair, Posada worked as a spy for then Salvadoran President Jose Napoleon Duarte. The court documents indicate Posada traveled around the Americas on false passports and that his line of work could be life-threatening. During a brief stint in Guatemala in 1990, he became the target of an assassination attempt and was shot several times in the face and torso.

Despite his globetrotting past, Posada is now, much to the U.S. Government's dismay, a man without a country. Since his arrest last year, officials in seven countries — Canada, Honduras, Costa Rica, Panama, El Salvador, Mexico and Guatemala — all have told him to forget about moving to their homeland. The notable exceptions were Cuba and its ally Venezuela, which both said they would welcome him. But the court previously found those countries likely would torture him. So the U.S. has found itself in the uncomfortable position of not having a place to deport Posada, but no longer being constitutionally able to extend — or willing to justify — his continued incarceration.

"The U.S. hasn't done anything in court, really, to make sure this man stays detained as a terrorist suspect, as a terrorist danger to society," Bernardo Alvarez, Venezuela's Ambassador to the U.S., tells TIME. "The Administration must either extradite Posada Carriles to Venezuela under the terms of our 1922 extradition treaty, or try him here in the U.S. as a known terrorist suspect in this hemisphere. Otherwise, the U.S. is just demonstrating further that it has a double moral standard when it comes to fighting terrorism." Cuban leaders hosting this week's summit of the Non Aligned Movement echoed those sentiments, describing Washington's handling of the Posada case as a just the latest example of its hypocrisy.

Immigration officials may have charged that Posada posed a real threat to the U.S., but Magistrate Norbert J. Garney ruled those findings insufficient to continue detention because of a 2001 Supreme Court ruling that ICE cannot detain people with immigration violations for more than six months unless the government deems the individual to be a danger or proves there are special circumstances. Garney, who works in the U.S. District Court in El Paso, where Posada now sits in detention, placed Posada's fate firmly in the hands of U.S. Attorney General Alberto Gonzalez. According to Garney, Posada can remain in detention if the Attorney General certifies he has "reasonable grounds to believe" Posada "has engaged in certain terrorist or other dangerous activity specified by statute." That certification must be reviewed by the Attorney General every six months.

In his ruling, Garney simply stated, "Certification by the Attorney General is required for aliens detained either on account of serious adverse foreign policy consequences or on account of security or terrorism concerns." Nor did the government detain Posada under any "special circumstances" that, under the Patriot Act, would have allowed prolonged detention beyond the six months established previously by the Supreme Court. Many observers viewed the fact that Garney issued his ruling on September 11 as a not-so-subtle rebuke of the Bush Administration, which he seems to feel is saddling the courts with a job that is really its responsibility.

Posada doesn't get to go home to his family in South Florida just yet, though. U.S. District Judge Philip Martinez will review Garney's recommendation and can adopt, amend or reverse the ruling. If he adopts it, the government has ten days to file an appeal.

"Although stranger things have happened in the past, I have full confidence the federal judge will adopt without any recommendation or comment," says Eduardo Soto, Posada's Miami-based attorney. Soto maintains the government lost its chance to go after his client as a terrorist when they initially detained him. "You have to choose whether you are going to charge someone as an immigration law violator or a terrorist," Soto says. "The individuals in Guantanamo are dealt with as terrorists. That is not what the American government decided to do with Luis Posada Carriles. They placed him in normal removal proceedings. They cannot go back and call him a terrorist."

That's not necessarily so, says Miami attorney and immigration law expert Ira Kurzban, who wrote Kurzban's Immigration Law Sourcebook, a textbook that even the government attorneys routinely refer to when presenting their cases. If the government wants to go back and reclassify Posada as a terrorist to keep him in detention if no nation wants to take him in, it may be able to. "The real question here is will the Administration apply its views on terrorism in an evenhanded way?" Kurzban asks. "If Mr. Posada was a member of al-Qaeda, would the Bush Administration do everything in its power to make sure he is detained beyond the six-month period?"

Government officials, who had not received the ruling by Tuesday, deferred comment. "We'll study the decision when we receive it," says ICE spokeswoman Barbara Gonzalez. Until then, Posada will sit in a holding facility in El Paso, Texas, a man without a country that the U.S. apparently doesn't want to charge as a terrorist — but also doesn't want to set free.

with reporting by Tim Padgett/Miami