Me, the FBI and the documents… take 33
David M. Hardy
Section Chief
Record Information Dissemination Section
Records Management Division
FBI
Washington, DC
Dear David M. Hardy,
Imagine my excitement when I received your recent letter in which you informed me that those FBI files you had previously said didn't exist actually did. Four hundred and nine pages, to be exact, of which you were prepared to release 407 of them to me.
Hard copy or CD, you asked?
CD please, I replied.
As you may recall, our ongoing, never-ending correspondence began in May 2010 when I first requested copies of “all reports, correspondence, memos, notes, emails and other records concerning a meeting between a delegation from the FBI and Cuban State Security in Havana in June 1998. My understanding is that the meeting itself took place from June 15-17, but I am also seeking any material relating to preparations for this meeting as well as follow-up from it for the period from May 1, 1998 to September 15, 1998.”
During those meetings, as you know, Cuba claims it handed over documents identifying dozens of U.S.-based individuals and groups involved in countless specific incidents of terrorism against Cuba—documents they have since kindly provided to me.
When I asked for American documents relating to these same meetings, you initially wrote back to say there were no such documents. None. At all.
That struck me as strange, so I wrote back to ask you to check again. You did. Still nothing.
I wrote again. Surely, I suggested, there must at least be a few hotel napkin notes, the odd expense voucher.
Well, you replied finally, yes, indeed, there might be a few scraps of paper. But you couldn't give them to me because, you see, there are ongoing investigations and releasing this sensitive material might compromise "pending or prospective" judicial proceedings "pursuant to 5 U.S.C. § 552(b)(7)(A)."
Odder still. What proceedings? The Cuban Five, as you know, were all convicted in 2001. The U.S. Supreme Court refused to hear the appeal of their convictions in 2009. And those meetings in Havana in 1998 weren't even about the Five, whose criminal case was not yet even a gleam in an FBI agent’s eye at that time.
The meetings were about the nefarious activities that U.S.-based terrorists like Luis Posada Carriles had been plotting and carrying out against Cuba. It is true the U.S. did finally, belatedly, prosecute Posada—not for blowing up that Cuban airplane in 1976, killing all 73 passengers, or for that string of bombings at Havana hotels in 1997 that killed an Italian-Canadian businessman but… wait for it…—for lying on an immigration form in 2005. And he was acquitted! (How did that happen anyway?)
Since then, there’s not been the slightest hint the FBI has any further interest in investigating Posada or any one else named in the Cuban documents.
So what “pending or prospective” cases were you referring to?
Patience and persistence being virtues I have come to depend on in our correspondence, I wrote you again on May 23, 2011.
"I'm sure if you rummage through the material I requested," I wrote, "you’ll discover at least a few scraps of paper that won’t compromise any ongoing investigations or pending prosecutions. Perhaps there’s an email outlining the background to the decision to send the FBI delegation to Havana in the first place. Or maybe a report—potential indictees’ names redacted—on whether the trip was worth it. How about a few receipts for meals, or a night on the town at the Tropicana? Given that the Cubans claimed one of the exile plots involved setting off explosives at the nightclub, that would certainly have been a legitimate expense."
Many months later, you wrote again to say that—Abracadabra! Sha-zam! Ka-boom!—“material was located pursuant to your request for information concerning Cuban State Security and FBI meeting in Havana (June 1998). Enclosed is a processed copy of the FBI Headquarters file 95D-HQ-1255131 and FBI Miami Field Office file 2-MM-89519-NC.”
Excitedly, I slipped the CD into my computer. There were two files: “FBI FOIA Relase (sic) Section 1 (1042207).pdf” and “FBI FOIA Release 1150092-003 Section 1 (1042747).pdf.”
The first—a small file containing only 129 kilobytes—consisted of two documents from the FBI lab in Washington, which essentially showed that, on June 18, 1998, an FBI examiner (NAME REDACTED) had examined three explosives samples and four electric detonators provided by the Cubans. By themselves, the report concluded, the items were not very helpful—largely because Dupont, the most likely manufacturer of the detonators, produced 50 million of them a year and they were “exported all over the world.”
Unfortunately, I already had copies of these documents since they’d been introduced as evidence during the trial of Luis Posada in 2010 and were, therefore, public.
But thanks for thinking of me.
Ever hopeful, I opened File #2, which seemed—at 37.2 MB—more promising.
Alas. With the exception of a potentially intriguing two-page memo dated July 16, 1998 and titled REDACTED (except for a couple of tag-on subjects: ACT OF TERRORISM, NEUTRALITY MATTERS-CUBA; 00: MIAMI).
In the memo, the author, NAME REDACTED (visible last letters “r-l-o”), asks “that the following subfiles be opened.” Most of the titles of the subfolders, however, are blanked out with the exceptions of “Laboratory reports,” “FD-302s, inserts” and “Newspaper clippings.”
Ah, yes, newspaper clippings.
The remaining 400 pages of the file you sent me contained nothing except newspaper clippings, some of them quite recent (including from the immigration fraud case against Luis Posada) and therefore outside the scope of what I’d asked from. There were also stories from 1990s from the Miami Herald, El Nuevo Herald, Orlando Sun-Sentinel, TIME, AP, CNN, ABC, La Prensa, Ann Louise Bardach’s website, Granma International, the official Cuban news agency, even a Cuban Ministry of the Interior press release.
There were four different copies of the same July 1997 New York Times series in which Luis Posada not only claimed credit for setting off those bombs in Havana hotels and killing Fabio DiCelmo—wrong place, wrong time; “I sleep like a baby”—but also insisted he was funded by the Cuban American National Foundation, the most influential exile lobby group in the United States.
Incredible, don’t you think, that the FBI never managed to connect the dots from the bombs to Posada to the Foundation? Or perhaps they weren’t really looking.
But I digress.
I do appreciate the newspaper clippings—I would have appreciated them more if you’d sent them before I spent close to $1,000 downloading copies from the Miami Herald and other news databases—but this still isn’t what I was looking for.
So… I really hate to do this, but I’m appealing again.
Can you look one more time—open a few drawers if you have to this time—and find all those “reports, correspondence, memos, notes, emails and other records concerning a meeting between a delegation from the FBI and Cuban State Security in Havana in June 1998.”
Yours in patience and persistence,
Stephen Kimber
Copyright 2012 Sting of the Wasp: The Cuban Five Connection
Interview on Posada trial with CBC Radio’s Dispatches
The interview is now available online.
Copyright 2011 Sting of the Wasp: The Cuban Five Connection
Shedding light, perhaps, on an assassination plot
Luis Posada Carriles
A legal argument Thursday over whether prosecutors should be permitted to tell the jury that Luis Posada allegedly talked with an FBI agent while in prison in Panama in 2000 may have inadvertently opened a new, if small window on what we know about a plot to assassinate Fidel Castro.
Posada and three accomplices were charged in November 2000 in connection with a botched attack on the Cuban leader.
On November 22, 2000, while Posada was still in jail awaiting trial, he met with local FBI legal attaché Gil Torres.
During that conversation, Posada supposedly told Torres he had, in fact, “planned the attack” on Castro but “abandoned it when he realized there would be too much collateral damage.”
Posada has always—before and since—publicly denied any involvement in the plot, insisting he was in Panama at the time only to meet with a wannabe Cuban military defector.
Five years later, during his 2005 asylum hearing, a Homeland Security lawyer again asked Posada whether he’d told the FBI he had planned the attack.
Posada answered “I don’t recall.”
Because the 2000 Panama interview took place in prison and Posada didn’t have counsel present, Judge Kathleen Cardone had already ruled the transcript couldn’t be used as evidence during Posada’s current immigration fraud case.
But prosecutors argued Thursday that shouldn’t stop them from simply making reference to the fact of the 2000 interview based on what Posada had said—under oath and with his lawyer present—during his asylum hearing five years later. During the ensuing arguments between the lawyers, the snippet about the FBI interview came out.
In the end, Judge Cardone rejected the government request.
What that means is that the jury won’t get to hear anything about the 2000 interview in which Posada confessed to planning the assassination, while—as he so often does—contradicting other statements he’d already made.
But thanks to the lawyerly arguments, we now at least know what Posada supposedly told the FBI about his role.
Not that that necessarily gets us any closer to the truth…
Copyright 2011 Sting of the Wasp: The Cuban Five Connection
Does the U.S. government want to convict Posada?
El Paso Federal Court House
If you are inclined to conspiracy theories, you might conclude—based on the evidence of the first few days of testimony in the immigration fraud trial of alleged terrorist Luis Posada Carriles—that the U.S. government is doing its damnedest to lose the case.
While the notion that prosecutors don’t want to win is almost certainly unfair, the reality is that prosecutor Jerome J. Teresinski’s performance with his first witness this week was—to be charitable—stunningly inept.
And his first witness, Gina Garrett-Jackson—the Miami-based Homeland Security lawyer who handled Posada’s 2005 asylum application—didn’t help the cause.
Teresinski, who one reporter described as looking like a young Robert Duvall, began by introducing one version of Posada’s asylum application without explaining there were, in fact, two identical but different-dated applications.
Which gave the defence a chance to muddify the legal waters almost before the first question had been asked.
Once that was cleared up and the exhibit properly introduced, Teresinski asked Garrett-Jackson a series of open-ended questions that allowed her, perhaps encouraged her, to ramble and answer questions he hadn’t asked. Justice Kathleen Cardone admonished both the lawyer and the witness to stick to the standard legal process of specific question-answer, question-answer.
That ate up his first afternoon. Thursday morning he tried another tack, asking Garrett-Jackson to read sections of the transcripts of Posada’s various hearings to herself—while the jury stared at the ceiling—and then proceeded to ask her confirmatory questions about what she’d just read.
After the defence objected, he switched course and asked the witness to read chunks of the transcript directly into the record. But he went back to the beginning and asked her about all the same passages he’d quizzed her on earlier.
When the defence objected again—this time to the witness’s intonations when she read—Teresinski switched gears one final time and played audio-taped excerpts—of the same material the jury had already heard twice in other forms—for the jury members who followed along on headphones.
By the time Teresinski finally managed to finish his direct examination of the witness—a witness whose job was simply to set the stage for the battle to come—there was less than an hour left in the day for the defence to begin its cross-examination.
Since the court won’t be sitting Friday and Monday is the Martin Luther King holiday in the U.S., the trial won’t resume until Tuesday. At this pace, joked judge Kathleen Cardone at one point, proceedings could drag on for two years. While that’s unlikely, the predictions of a four-to-six week trial are beginning to seem optimistic.
Court observers seemed perplexed by the government’s stumbling start.
The reality is that the three front-and-centre lawyers on the government side—Teresinski, lead prosecutor Timothy J. Reardon III and Bridget Behling—are all ostensibly high-powered trial attorneys with the U.S. Department of Justice’s Counterterrorism Section, National Security Division, in Washington, and were parachuted into El Paso specifically to handle this case.
None of which is to suggest the war is lost. Trials have their own ebb and flow, and the government can certainly recover its momentum and equilibrium. But the reality is that they are not off to an auspicious start.
Copyright 2011 Sting of the Wasp: The Cuban Five Connection
Posada trial, Day 3: Opening arguments, the Bill Clinton sex defence
Laying the groundwork for what sounded very much like a Bill Clinton “I-did-not-have-sex-with-that-woman” defence, Luis Posada’s lawyer insisted today his client “told the truth… told substantially the truth on the major questions” that U.S. prosecutors insist he lied about.
During opening arguments at Posada’s trial on charges he lied during his 2005 immigration application, Arturo Hernandez attempted to parse the words “soliciting” and “arranging”—which Posada denied he did in relation to a 1997 Havana hotel bombing campaign—as “terms of art."
He also said that during a 1998 interview with journalist Ann Louise Bardach, when Posada claimed credit for the bombings, he was simply taking “overall responsibility as the world’s most well known anti-Castro activist... the dean of anti-Castro opponents” for what was, in reality "an inside operation."
Hernandez also served notice he plans to attack the credibility of key prosecution witnesses, calling one a “Cuban spy” and dismissing another as a man who had “dated Castro’s daughter.” He described journalist Bardach, who is scheduled to testify, as a “biased individual” and said it’s a “known fact” that the New York Times for which she wrote the story often has a “pro-Castro” bias.
But the judge prevented Hernandez—for the moment at least—from directly making one of his other key arguments: that Cuba has a 50-year track record of “fabricating evidence,” including at the trial of the Cuban Five and in eight other instances.
Judge Kathleen Cardone ruled he could not use that material in his opening statement. She said the defence could introduce such evidence later in the trial, but only if it can lay a legal foundation for it. “That’s a high burden,” she added.
In contrast to the dapper, avuncular Hernandez’s impassioned hour-long presentation, chief prosecutor Timothy Reardon III, a balding man with a grey fringe who normally walks with a cane but limped, cane-less, during his presentation this morning, spoke slowly and deliberately during his 30-minute opening statement.
“This is a case about lying and choice,” he told the jurors, and proceeded to take them through the chronology of the case from March 18, 2005 when the prosecution says Posada arrived in Miami by boat—Posada told officials he had entered the U.S. near Houston after paying $10,000 to a "coyote" or illegal alien smuggler—to the superseding indictment filed against Posada in April 2009.
Summing up the government's case, Reardon quoted Scottish author Walter Scott: "Oh what a tangled web we weave when first we practise to deceive."
The case continues.
More later...
Copyright 2011 Sting of the Wasp: The Cuban Five Connection
Posada trial opening day
EL PASO, Texas--Luis Posada Carrile's long-awaited, much delayed trial stuttered--almost literally--out of the gate Monday.
Anti Posada demonstrators outside court house
Judge Kathleen Cardone spent a long day bulk-questioning 130 potential jurors about everything from whether they'd read or heard anything about the case--42 had--to whether they, or their friends or family, had any connection with law enforcement. A surprising number--or perhaps not so surprising in a city that boasts one of the largest police and border patrol establishments in the United States—detailed their various family and social connections to law enforcement.
At least as many jurors responded to the judge's question about whether they or anyone close to them had gone through the American naturalization process to become citizens, an especially common experience in this border town where 80 per cent of the population describes themselves as of Hispanic heritage.
Only one would-be juror said she didn't really know "anything" about the state of relations between Cuba and the United States, but none claimed they had a strong opinion about Cuban-American relations.
Lawyers will use the potential jurors’ answers to the judge’s questions--along with material they've generated themselves--to help them choose what they hope will be the most sympathetic jury for their case.
The trial itself is expected to begin with opening arguments Tuesday and will probably last for four to six weeks.
Random notes from Day 1:
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The day began with dueling demonstrations by pro- and anti-Posada factions. The two groups kept a respectful distance as they waved posters and chanted for the cameras in front of the courthouse building on East San Antonio Avenue. You can watch a video report on the anti-Posada demonstration at the website of the Nation Committee to Free the Five.
Pro Posada demonstrators - Posada, with a retinue of bodyguards wearing weapons, arrived at the courthouse just after 8 a.m. and breezed past the protestors.
- During the trial, Posada and his entourage are staying at the nearby Camina Real hotel, which is where some of the organizers of the anti-Posada rally also bunked down Sunday night. Although there was apparently a mild confrontation at breakfast--someone yelled insults at Posada--Gloria La Riva, the director of the National Free the Five Committee, which organized the protest, insists the heckler "wasn't one of ours."
- Because of the size of the jury pool, Judge Cardone moved jury selection out of her usual courtroom into a larger one. Even that wasn’t large enough for all the first batch of 130 potential jurors, however, so additional chairs were brought in. Half a dozen reporters and a handful of interested spectators were shuffled off to an empty court room five floors below to watch the proceedings via closed circuit TV. But officials couldn't get the audio to work properly. The reporters couldn’t see anything more revealing than a static wide shot of the front of the courtroom—which did not include a view of the defence table, for example, where Posada was seated—and the headache-inducing reverberation from a stuttering audio feed made it virtually impossible to decipher what anyone was saying. Once the jury is selected, proceedings will return to Judge Cardone’s regular court room for the actual trial.
- Although the Albert Armendariz, Sr., court house in downtown El Paso, where the case is being heard, is just seven months old and boasts large, airy court rooms, it is decidedly media and new-technology unfriendly. Visitors to the building, including reporters, aren't allowed to bring cell phones, cameras, or recording devices into the building, let alone the courtroom. Most judges, Cardone among them, won't even permit reporters to use laptops in their court rooms. To complicate matters, there is nopress room on the premises where the reporters can work.
- During one of the breaks in the day’s action, I noticed a court security officer reading—with what appeared to be interest—Luis Posada Carriles: Notes from a Tribunal, a pamphlet about a 2008 panel on the Posada case that anti-Posada demonstators were distributing yesterday.
- The El Paso Times asked its readers to weigh in on how best to deal with Luis Posada. 73.8 per cent of the 378 people who voted said Posada should be tried on terrorism charges; 13.22 per cent argued authorities should leave him alone—"he's an old man—and 12.96 per cent declared him "innocent" of the charges against him.
Copyright 2011 Sting of the Wasp: The Cuban Five Connection
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About
This is the site for What Lies Across the Water: The Real Story of the Cuban Five, collected research and other materials for an in-progress narrative nonfiction book about the Cuban Five by Stephen Kimber.
The Cuban Five were members of "La Red Avispa"—the Wasp Network—spies Havana dispatched to Florida in the early 1990s to infiltrate militant anti-Castro exile groups that Cuba believed were plotting terrorist attacks on its soil. The Cuban Five were arrested, tried, convicted and sentenced to long prison terms in the United States.
In the United States, they are virtually unknown. In Cuba, they are heroes.
That’s the short version of the story. The long version is… well, more complicated... Stay tuned.
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