• An exclusive interview with José Pertierra, an expert on migratory issues

Taken from Progreso Weekly
May 24, 2005

Early in the afternoon of Tuesday May 17, Luis Posada Carriles was arrested by the Department of Homeland Security. At the time of his arrest, Posada had been on U.S. soil for 8 weeks. In Miami TV programs and news media, friends and collaborators had declared that he was alive and well in the city, and biding his time painting and reading. In spite of these claims, high officials of the Bush administration commented on the subject, denying or ignoring the presence of the terrorist on U.S. soil. But Posada was arrested in Miami after a press conference, while over a million Cubans marched in front of the U.S. Interest section in Havana that same morning demanding his arrest and extradition.

What will happen now with Posada Carriles? What are Posada’s and the Bush administration’s alternatives? These are questions asked by people in Havana and Miami. To shed some light on the subject, Radio Progreso Alternativa/Progreso Weekly Havana Bureau chief, Manuel Alberto Ramy, interviewed Cuban-American lawyer José Pertierra, one of the foremost experts on migratory issues in the U.S.

This a version of the telephone interview broadcast by Francisco Aruca on his program “Ayer en Miami.”

Progreso Weekly (PW): What alternatives does the U.S. government have after arresting Luis Posada Carriles?

José Pertierra (JP): The United States has done what it should have done a long time ago, arrest Posada Carriles, because a terrorist has no right to be at home painting and watching the news whenever he feels like it. If he hadn’t been Cuban, Posada would have been in jail a long time ago. Now the Department of Homeland Security must process Posada’s request for asylum, and also the request of extradition by the government of Venezuela. They are two parallel processes, independent one from the other. The U.S. government is going to win the asylum process. They can’t grant that man asylum; Posada’s case for asylum was buried from the beginning, because someone who has committed crimes as serious as blowing up a plane or bombing Havana hotels and killing an Italian tourist named Fabio di Celmo, has no right to asylum. A terrorist can’t claim that right, neither can he claim the Law of Cuban Adjustment, nor avoid being deported. From the point of view of immigration, he’s screwed.

PW: And in relation to extradition?

JP: The Venezuelan government has requested extradition. Now a federal judge has to study if the request is in accordance to the extradition treaty signed between the two countries in 1922. He has to decide if he has committed any of the crimes contemplated in the treaty. The murder of 73 innocent people in a civilian airplane is included in the treaty. Then the federal judge is going to decide that he is subject to extradition; but the judge doesn’t order the extradition, he puts the hot potato in the hands of the Secretary of State, in this case Condoleezza Rice, and she will be the one to make one of three choices: 1) She extradites him; 2) decides not to; and 3) she extradites him, but imposes certain conditions on Venezuela, like a commitment not to sentence him to death, or whatever.

The last variant would be for Posada to ask refuge under the Torture Convention before an immigration judge. But he has a problem there, for there is evidence that Posada himself is a torturer, that under former president Carlos Andrés Pérez, and when he was an officer of the Disip (Venezuelan intelligence service), he tortured prisoners. There is testimony on the matter. The Torture Convention does not protect torturers, rather demands from the state that is harboring the torturer to deport him to the country where he tortured. But if a judge decided in his favor, Posada wouldn’t necessarily remain in the U.S. The Secretary of State can still ignore the decision by the immigration judge and extradite him. In sum, the hot potato, in any case, is in the hands of Condoleezza Rice. She’ll have to hold the hot potato, and I believe that if she follows the law, she will have to extradite Posada to Venezuela to be tried there. It’s the only legal and reasonable alternative.

PW: Does that mean that independent of the law in any of the two processes, in the end it is basically a political decision?

JP: Political, but with a legal basis. Condoleezza Rice makes the decision to extradite him after a federal judge has decided that he is subject to extradition. And we’ll also see that an immigration judge will not grant this man political asylum. There is a legal basis for this and an extradition treaty that forces the U.S. government to do its duty and extradite him. What happens is that the U.S., in this case and from the beginning, has wanted to wash its hands and say “it’s not my hot potato,” and you’ll see that they’ll try to dump it on some immigration judge. But that can’t be done, because it’s White House who has to make the decision.